6 Finances - 60 Financial Management (ÖBG)

This law applies to the awarding of public contracts by adjudicators located within the cantonal territory, in addition to the Intercantonal Agreement on Public Procurement (hereinafter: AIMP), dated November 15, 2019.

Excluded from the scope of public procurement legislation are

a) the Neuchâtel Cantonal Bank;

b) pension funds, the Cantonal Insurance Fund, and the Cantonal Institution for Insurance and Prevention (ECAP), when they are investing as part of their financial assets.

1. Subject to the provisions of the AIMP and the present law, the procedure regarding public procurement is governed by the Administrative Procedure Act (APA), dated March 18, 2025.

2. Unless otherwise specified in the call for tenders, the language of the procedure is French. The awarding entity may exclude an offer if it is submitted in another language.

3. All decisions mentioned in article 53, paragraph 1, AIMP can be appealed to the Cantonal Court when the contract value reaches the threshold value that determines the procedure by invitation. The type of procedure chosen is not decisive.

4. Decisions made within the framework of a direct award procedure according to article 21, paragraph 1, AIMP are not subject to appeal.

5. Subject to publication provisions, the invitation procedure is subject to the rules governing the open procedure.

1. The decisions of the contracting entity are communicated individually to each of the bidders.

2. In open and selective procedures, as well as in direct award procedures under Article 21, paragraph 2, AIMP subject to international treaties, they are also published on the platform simap.ch.

3. The award decision indicates at least the name of the successful bidder and the final evaluation table of the offers. This table mentions the award criteria, the total price of the accepted offer, the weightings, and the scores obtained by each bidder. All names will be redacted, except for those of the successful bidder and the recipient of the decision.

4. When two or more bidders are tied at the end of the offer analysis, the contracting authority freely decides which bidder will be awarded the contract.

1 The prospective bidder shall provide proof of compliance with collective labor agreements by submitting a certificate obtained from the joint committees established by said agreements.

2. In particular, to combat wage dumping, bidders and their subcontractors providing services in the Canton of Neuchâtel are required to comply with the working conditions in force in the canton, specifically the provisions on the Neuchâtel minimum wage or those set out in a collective labor agreement declared universally binding within the cantonal territory when there is no equivalent at the location of their headquarters or establishment in Switzerland.

3. Non-compliance with working conditions constitutes grounds for exclusion of the bidder or revocation of the award.

1. Bidders must adhere to equal pay between women and men.

2. When the value of the contract exceeds 30,000 francs, the awarding entity invites any bidder with an objective chance of obtaining the contract and employing at least 20 workers, where apprentices are not included in this count, to provide a verified analysis of pay equality conducted in accordance with articles 13a and following of the Federal Act on Equality Between Women and Men [3].

1. In order to ensure compliance with provisions relating to the protection of workers, working conditions, equal pay between women and men, as well as environmental law, the contracting authority includes liquidated damages in the contract it concludes with the contractor.

2. No liquidated damages may be stipulated for a delay in work due to a heatwave as defined by the regulations of the Council of State or other extreme climatic events that prevent the continuation of work to protect the health of workers.

1. The contracting authority establishes the award criteria in accordance with Article 29 of the AIMP.

2. For contracts not subject to international agreements, the contracting authority is encouraged to consider the criterion of vocational training, particularly in negotiated contracts.

**1. The contracting authority may limit or exclude the use of subcontracting or personnel leasing in the call for tenders.**

2. The bidder must indicate in their offer the portion and type of services they intend to subcontract, the complete contact details of all their subcontractors, as well as the use of personnel leasing.

3. Subcontractors and personnel leasing companies must meet the same participation requirements as the bidder. The call for tenders may provide for specific competency conditions for subcontractors.

4. In the event of a change of subcontractor during the execution of the contract, the successful bidder must inform the contracting authority before the implementation of the concerned services, for approval.

5. The use of sub-subcontractors (second-tier subcontracting) is prohibited, unless authorized by the call for tenders. In any case, the contract cannot be subcontracted beyond a second tier.

[4]

The contracting authority may exclude a bidder, even before reviewing the award criteria, if it appears that the bidder does not meet the eligibility criteria.

1. The contracting authority may stipulate, in the call for tenders or the invitation, that a bid will be excluded if its price exceeds a specified amount, which must be expressly indicated in the call for tenders or the invitation.

2. Provided it has reserved the right to do so in the call for tenders or the invitation, the contracting authority may exclude an offer that has not achieved a minimum number of points on one or more award criteria. This minimum must be expressly mentioned in the call for tenders or the invitation.

The services of the cantonal administration responsible for matters of labor law, gender equality, and environmental protection, or the joint bodies of applicable collective labor agreements, are competent, within the meaning of Article 12, paragraph 5, AIMP, to monitor compliance with the conditions set forth in Article 12, paragraphs 1 to 3, AIMP relating to the protection of female and male workers, working conditions, equal pay for women and men, and environmental law. The awarding authority may consult them before the awarding of the contract or during its execution.

1. The Council of State appoints, at the beginning of each administrative period, a Competence Center for Public Procurement (CCPP) composed of representatives from the services of the cantonal administration concerned with public procurement.

2. This body is notably responsible for

a) informing and advising adjudicators on general matters and on an ad hoc basis;

b) evaluating the effects of the current regulations and proposing necessary adaptations.

1. The Council of State designates the department responsible for the application of this law.

2. It adopts, if necessary, all the necessary implementing provisions, particularly regarding

a) the applicable procedure concerning competitions and parallel study mandates (Art. 22 AIMP);

b) the maintenance of lists of qualified bidders (Art. 26 and 28 AIMP) and sanctioned bidders (Art. 45, para. 3, AIMP);

c) the ability for the adjudicator to require the contractor and its auxiliaries to establish a worker control system ensuring compliance with working conditions, pay equity, and the payment of social charges during the contract execution;

d) the designation of the authority competent in matters of sanctions, instructions, and announcements as provided by Article 45 AIMP;

e) the maintenance of a list of cases where subsidies have been withdrawn (Art. 45, para. 5, AIMP);

f) the maintenance of statistics on awarded contracts and their announcement to the AIMP (Art. 50, para. 1, AIMP);

g) the designation of the authority competent to pronounce exclusion from future public contracts in the sense of the Federal Law concerning measures to combat undeclared work (LTN), dated June 17, 2005;

h) the designation of the authority competent to ensure compliance with the AIMP by the awarding entities and the bidders (Art. 62, para. 1 and 2, AIMP);

i) the setting of fees resulting from the activities of the CCMP (Art. 9, para. 2a, AIMP).

3. The Council of State is authorized to

a) conclude agreements with border regions and neighboring states in the sense of Article 6, paragraph 4, AIMP;

b) declare the adherence to and denunciation of the AIMP to the intercantonal authority within the meaning of Article 63, paragraphs 2 and 3, AIMP.

This law applies to procedures for which the call for tenders occurs after its entry into force or, if contracts are awarded without a call for tenders, when no offer is submitted before its entry into force.

The Cantonal Law on Public Procurement (CLPP) of March 23, 1999 [6], and the Implementing Regulation of the Cantonal Law on Public Procurement (IRCLPP) of November 3, 1999 [7], are repealed.

The Municipal Law (LCo), of December 21, 1964 is amended as follows

This law is subject to an optional referendum.

1. The Council of State shall, if necessary, provide for the promulgation and execution of the present law.

2. It shall set the date of its entry into force.

Law promulgated by the Council of State on October 15, 2023.

The entry into force is set to take effect on January 1, 2024.