Switzerland: Recent Developments in Public Procurement Law

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Presentation transcript:

Switzerland: Recent Developments in Public Procurement Law Martin Beyeler Professor at the University of Fribourg/Switzerland Institute for Construction Law / Smart Living Lab ESCL – Annual Conference Bucharest 2018

Overview The Legal Framework New Legislation on the Horizon GPA 2012 Process Selected Topics

The Legal Framework

The Legal Framework Switzerland is not member of the EU and does not participate in the EEA EU directives do not apply WTO Government Procurement Agreement Bilateral Agreement EU / CH; EFTA Agreement extension of GPA’s coverage: municipalities and some more sectors (e.g., railways)

International Law (where applicable) The Legal Framework Swiss Public Procurement Law (simplified) International Law (where applicable) Swiss Constitution Federal Law for federal entities Cantonal Law for regional and municipal entities

The Legal Framework Swiss Public Procurement Law (de lege lata) In general comparable with EU Law Substantial Differences Between Federal and Cantonal Level Between 26 Cantonal Statutes No Extensive revision since 1996 Inflexible procedures, no rules on the use of electronic means or of framework agreements, few promotion of innovation and sustainability

New Legislation on the Horizon

New Legislation on the Horizon Project started in 2012 Working Group (fed./cant.)  Swiss Government (fed. admin.)  Swiss Parliament (2017/2018) Implementation of the GPA 2012 Harmonisation of the (1+26) Statutes on Public Procurement Modernisation of Public Procurement Law

New Legislation on the Horizon Implementation of the GPA 2012 Extension of Coverage (Switzerland’s Offer) Federal Parliament and Federal Courts Some Services / Some Dual-Use Goods Use of Electronic Means Clarification of the Rules on Direct Awards Promotion of Green (and Social?) Sustainability Fight Against Corruption

New Legislation on the Horizon Harmonisation of 1+26 acts Political Issues (Federalist Structures) e.g., negotiations Not one single Statute… … But harmonised Federal Statute and Intercantonal Treaty (not per se mandatory but likely to be accepted by all or most Cantons)

New Legislation on the Horizon Selected Topics (i) Extension of Coverage Federal Parliament and Federal Courts (international market opening) Some Services, some Dual-Use Goods (international market opening) Concession and Delegation of Public Missions (only national market opening)

New Legislation on the Horizon Selected Topics (ii) Negotiations (modification of tender documents and/or bids) Federal Entities: “indispensable” cantonal / municipal entities: “evil” Solution: Technical Negotiations, called “Adjustment” (with possible adjustment of prices)

New Legislation on the Horizon Selected Topics (iii) Sustainability Green Procurement: Consolidation of current Practice Social Procurement: moving towards EU Rules “Sustainable for the National Economy” (debated)

New Legislation on the Horizon Selected Topics (iv) More Flexibility Rules on Framework Agreements Dialogue Procedure Facilitated Direct Award of Supplementary Goods or Services “Architectural / Engineering competition” for other than Construction Services (e.g., Software)

New Legislation on the Horizon Selected Topics (v) Review Procedures (Federal Level) Today: No Review outside the Scope of International Treaties In the Future: Review (but only Compensation of bidding cost) Review Procedures (Cantonal/Municipal Level) Antitrust Authority’s Right to Challenge: Maintained