1. 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

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

3. The Legal Framework

4. 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)

5. 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

6. 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

7. New Legislation on the Horizon

8. 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

9. 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

10. 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)

11. 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)

12. 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)

13. 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)

14. 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)

15. 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