Law on Accession to the Intercantonal Agreement on Public Procurement of November 15, 2019 (Accession Law ICAoPP) (BEIGIVÖB)

The Canton of Zurich joins the Intercantonal Agreement

on Public Procurement (IVöB) of November 15, 2019.

The client may delegate the issuance of decisions.

1. **Right of appeal against decisions under Article 53 IVöB, irrespective of contract value**

An appeal may be lodged with the Administrative Court as the sole cantonal instance against decisions in accordance with Article 53 IVöB, irrespective of the contract value.

2. **Appeal procedure**

The provisions of the Administrative Justice Act of 24 May 19594 concerning appeals before the Administrative Court apply supplementarily.

The awarding authority may, in compliance with Switzerland's international price level commitments, and in addition to the award criteria pursuant to Art. 29 para. 1 GPA, particularly consider the criterion "different price levels in the countries where a service is performed."

The awarding authority applies the award criterion of training apprentices in vocational education and training to contracts outside the scope of the State Treaty on Education, weighting it with a minimum of 5% and a maximum of 10%.

1. **Reporting Exclusions**

In the case of exclusions pursuant to Article 45, paragraph 1 of the IVöB, the contracting authority or the client submits the legally binding decision to the canton. The canton reports to the Intercantonal Organ for Public Procurement (InöB).

2. The Government Council designates the competent body.

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Intercantonal Agreement on Public Procurement

1 The Cantonal Government is authorized

a. to ratify amendments to the IVöB, insofar as they are of subordinate

importance,

b. to declare accession to and withdrawal from the IVöB to the InöB.

2 The Cantonal Government shall regulate the details of the procedure, enforcement

and organization in an ordinance5, in particular

a. the bodies responsible for enforcement, controls and supervision

(Art. 12 para. 5, 28 para. 1, 45 para. 1–5, 50 para. 1 and 62

para. 1 and 2),

b. the details of the electronic procedure, in particular the

electronic submission of offers and issuance of decisions

(Art. 34 para. 2),

c. the creation of additional statistics,

d. the bodies responsible for uniform enforcement, provision of information and

training and continuing education in public procurement.

The Law of September 15, 2003, on Accession to the Revised Intercantonal Agreement on Public Procurement of March 15, 2001, is repealed.

Until all cantons have acceded to the Agreement on Public Procurement of November 15, 2019, the following shall apply in relation to cantons that have not acceded to this Agreement,

Here is the English translation of the law article

**720.1 Intercantonal Agreement on Public Procurement**

**Exceptions**

**1** This Agreement shall not apply to

a. the procurement of services with a view to commercial sale or resale, or with a view to their use in the production or supply of services for commercial sale or resale;

b. the acquisition, rental or lease of land, buildings and facilities, as well as the corresponding rights thereto;

c. the provision of financial assistance;

d. contracts concerning financial services in connection with the issuance, purchase, sale, transfer or management of securities or other financial instruments, as well as services of central banks;

e. contracts awarded to institutions for persons with disabilities, work integration organizations, charitable institutions and penal institutions;

f. contracts governed by employment law;

g. the public law provident institutions of the cantons and municipalities.

**2** Furthermore, this Agreement shall not apply to the procurement of services

a. from providers who hold an exclusive right to provide such services;

b. from other legally independent contracting authorities that are themselves subject to public procurement law, insofar as these contracting authorities do not provide these services in competition with private providers;

c. from non-independent organizational units of the contracting authority;

d. from providers over which the contracting authority exercises control equivalent to that over its own departments, insofar as these undertakings provide their services predominantly for the contracting authority.

**3** Furthermore, this Agreement shall not apply to public contracts,

a. if this is deemed necessary for the protection and maintenance of external and internal security or public order;

b. insofar as this is necessary for the protection of human health or life, or for the protection of animal and plant life;

c. insofar as their tendering would infringe intellectual property rights.

**Chapter 3: General Principles**

**Procedural Principles**

When awarding public contracts, the contracting

authority observes the following procedural principles

a. It conducts procurement procedures transparently, objectively, and impartially;

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Intercantonal Agreement on Public Procurement 720.1

b. it takes measures against conflicts of interest, unlawful competitive

agreements, and corruption;

c. it ensures equal treatment of bidders in all phases of the procedure;

d. it refrains from reverse auctions;

e. it maintains the confidential nature of bidders' information.

of the Labor-

1 Compliance with

For services to be rendered domestically, the contracting authority the provisions

shall award a public contract only to tenderers who comply with the of labour

domestically applicable labour protection provisions and working protection,

conditions, the reporting and permit obligations under the Federal working

Act of 17 June 2005 against Undeclared Work (BGSA), and the conditions,

provisions on equal treatment of women and men with regard to equal pay,

equal pay. and

environmental law

2 For services to be rendered abroad, the contracting authority

shall award a public contract only to tenderers who comply with at

least the core conventions of the International Labour Organization

(ILO) as per Annex 3. The contracting authority may additionally

demand compliance with other essential international labour standards

and request corresponding proofs as well as agree on controls.

3 The contracting authority shall award a public contract only to

tenderers who comply with at least the legal provisions applicable at

the place of performance for the protection of the environment and

the conservation of natural resources; this includes, domestically, the

provisions of Swiss environmental law and, abroad, the international

conventions for the protection of the environment designated by the

Federal Council as per Annex 4.

4 Subcontractors are obliged to comply with the requirements

under paragraphs 1 to 3. These obligations must be included in the

agreements between the tenderers and the subcontractors.

5 The contracting authority may control compliance with the

requirements under paragraphs 1 to 3 or transfer the control to third

parties, provided this task has not been assigned to a special statutory

authority or another suitable body, in particular a joint control body. For

the performance of these controls, the contracting authority may provide

the authority or the control body with the necessary information and

documents. Upon request, the tenderer must provide the necessary

proofs.

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720.1 Intercantonal Agreement on Public Procurement

6 The authorities and control bodies responsible for ensuring

compliance with the requirements under paragraphs 1 to 3 shall report

to the contracting authority on the results of the controls and on any

measures taken.

Recusal

1 Individuals are prohibited from participating in the procurement process on the part of the contracting authority or an expert panel if they

a. have a personal interest in a contract;

b. are connected with a tenderer or with a member of one of its bodies through marriage or registered partnership, or are living in a de facto cohabitation;

c. are related by blood or marriage to a tenderer or to a member of one of its bodies in the direct line or up to the third degree in the collateral line;

d. are representatives of a tenderer or have acted for a tenderer in the same matter; or

e. lack the independence required for the conduct of public procurements due to other circumstances.

2 A request for recusal must be submitted immediately upon knowledge of the grounds for recusal.

3 The contracting authority or the expert panel decides on requests for recusal, excluding the person concerned.

4 The contracting authority may stipulate in the invitation to tender that tenderers who, in competitions and study assignments, have a relationship with a jury member that would give rise to a conflict of interest, are excluded from the procedure.

Prior Involvement

1 Bidders who were involved in the preparation of a procurement procedure are not permitted to submit a bid if the competitive advantage they gained as a result cannot be offset by suitable means and if the exclusion does not jeopardize effective competition among bidders.

**2 Suitable means to offset the competitive advantage include, in particular:**

**a. the disclosure of all essential information about the preliminary work;**

**b. the announcement of those involved in the preparation;**

**c. the extension of the minimum deadlines.**

**3 A market survey conducted by the contracting authority prior to the public tender does not lead to a prior involvement of the queried bidders. The contracting authority announces the results of the market survey in the tender documents.**

**10**

**Intercantonal Agreement on Public Procurement 720.1**

1 Determination of the

Contract Value**

The contracting authority shall estimate the prospective contract value.

2 A public contract shall not be divided in order to circumvent the provisions of this Agreement.

3 For the estimation of the contract value, all services or fees to be tendered shall be taken into account, insofar as they are closely connected factually or legally. All components of the fees shall be included, including extension options and options for subsequent contracts, as well as all expected premiums, charges, commissions, and interest, excluding value-added tax.

4 For contracts with a fixed term, the contract value shall be calculated based on the cumulative fees over the fixed term, including any extension options. The fixed term shall generally not exceed 5 years. In justified cases, a longer term may be provided.

5 For contracts with an indefinite term, the contract value shall be calculated based on the monthly fee multiplied by 48.

6 For contracts concerning recurring services, the contract value shall be calculated based on the fees paid for such services during the last 12 months or, in the case of an initial award, based on the estimated requirement over the next 12 months.

**Chapter 4: Award Procedures**

**Threshold Values**

1 The choice of procedure depends on whether a contract reaches a threshold value according to Annexes 1 and 2. InöB periodically adjusts the threshold values in accordance with international obligations, after consulting the Federal Council.

2 In the event of an adjustment of international obligations regarding the threshold values, the Confederation guarantees the cantons participation.

3 If the total value of several construction services for the realization of a construction work reaches the threshold value for the treaty-covered sector, then the provisions of this agreement for procurements within the treaty-covered sector shall apply. If, however, the values of the individual services do not reach two million Swiss francs and the aggregated value of these services does not exceed 20 percent of the total value of the construction work, then the provisions for procurements outside the treaty-covered sector shall apply to these services (de minimis clause).

4 Outside the treaty-covered sector, the applicable procedure for construction services is determined based on the value of the individual services.

**Types of Procedures**

Depending on the contract value and the thresholds, public contracts are awarded at the discretion of the contracting authority either by open procedure, selective procedure, invited tender procedure, or negotiated procedure.

Open Procedure

1 In open procedures, contracting authorities publicly invite

tenders.

2 All suppliers may submit a tender.

Selective

Procedure

1 In the selective procedure, the contracting authority publicly advertises the contract and invites providers to submit an application to participate in the first instance.

2 The contracting authority selects the providers who may submit a bid based on their suitability.

3 The contracting authority may limit the number of providers admitted to bid to the extent that effective competition is ensured. If possible, at least three providers will be admitted to bid.

Invitation Procedure

1 The invitation procedure applies to public contracts outside the scope of international treaties, in accordance with the threshold values set out in Annex 2.

2 In the invitation procedure, the contracting authority determines which providers it wishes to invite to submit an offer without a public tender. For this purpose, it prepares tender documents. If possible, at least three offers are obtained.

Direct Award Procedure

1. Direct Award Procedure

1 In a direct award procedure, the contracting authority awards a public contract directly without a tender. The contracting authority is entitled to obtain comparative offers and to conduct negotiations.

2 The contracting authority may award a contract by direct award, regardless of the threshold value, if one of the following conditions is met

a. no offers or no requests to participate are received in the open procedure, the selective procedure or the invitation procedure, no offer meets the essential requirements of the tender or the technical specifications, or no bidder fulfils the suitability criteria;

Intercantonal Agreement on Public Procurement 720.1

b. there are sufficient indications that all offers received in the open procedure, the selective procedure or the invitation procedure are based on an inadmissible anti-competitive agreement;

c. due to the technical or artistic particularities of the contract or for reasons of intellectual property protection, only one provider is suitable, and there is no adequate alternative;

d. due to unforeseeable events, the procurement becomes so urgent that an open or selective procedure and an invitation procedure cannot be carried out, even with shortened deadlines;

e. a change of provider for services to replace, supplement or extend already rendered services is not possible for economic or technical reasons, would cause significant difficulties or would entail substantial additional costs;

f. the contracting authority procures initial productions (prototypes) or novel services that are produced or developed at its request within the framework of a research, experimental, study or new development contract;

g. the contracting authority procures services on commodity exchanges;

h. the contracting authority can procure services within the framework of a favourable, temporary opportunity at a price significantly below usual prices (especially in liquidation sales);

i. the contracting authority awards the follow-up contract to the winner of a planning or total service competition or a selection procedure for planning or total service studies; the following conditions must be met

1. the preceding procedure was carried out in accordance with the principles of the agreement;

2. the proposed solutions were evaluated by an independent panel of experts;

3. the contracting authority reserved the right in the tender to award the follow-up contract or coordination by direct award.

3 The contracting authority shall prepare documentation for each contract awarded in accordance with paragraph 2, with the following content

a. name of the contracting authority and the selected provider;

b. type and value of the procured service;

c. explanation of the circumstances and conditions justifying the application of the direct award procedure.

The client, who organizes a planning or comprehensive service competition or awards study contracts, regulates the procedure in individual cases within the framework of the principles of this agreement. They may refer to relevant provisions of professional associations.

1 The contracting authority may conduct an electronic auction for the procurement of standardised services within the scope of a procedure under this agreement. In this process, bids are revised after an initial full evaluation and re-ranked by means of electronic tools and, if necessary, multiple rounds. This must be indicated in the tender.

2 The electronic auction extends

a. to prices, if the contract is awarded for the lowest total price; or

b. to prices and values for quantifiable components such as weight, purity or quality, if the contract is awarded for the most advantageous offer.

3 The contracting authority checks whether the bidders meet the suitability criteria and whether the offers meet the technical specifications. It performs an initial evaluation of the offers based on the award criteria and the weighting specified for them. Before the start of the auction, it provides each bidder with

a. the automatic evaluation method, including the mathematical formula based on the aforementioned award criteria;

b. the result of the initial evaluation of its offer; and

c. all other relevant information for the conduct of the auction.

4 All admitted bidders are simultaneously and electronically invited to submit new or adjusted offers. The contracting authority may limit the number of admitted bidders, provided that it has announced this in the tender or in the tender documents.

5 The electronic auction may comprise several successive rounds. The contracting authority informs all bidders in each round about their respective rank.

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Intercantonal Agreement on Public Procurement 720.1

1 **Dialogue in Complex Procurements**

In the case of complex procurements, intellectual services, or the procurement of innovative services, a contracting authority may conduct a dialogue within the framework of an open or selective procedure with the aim of specifying the subject matter of the performance and identifying and determining solutions or approaches. The invitation to tender must refer to the dialogue.

2 The dialogue may not be conducted for the purpose of negotiating prices and total prices.

3 The contracting authority formulates and explains its needs and requirements in the invitation to tender or in the tender documents. It also announces

a. the process of the dialogue;

b. the possible contents of the dialogue;

c. whether and how participation in the dialogue and the use of the intellectual property rights as well as the knowledge and experience of the tenderer will be compensated;

d. the deadlines and modalities for submitting the final offer.

4 The contracting authority may reduce the number of participating tenderers according to objective and transparent criteria.

5 It documents the process and content of the dialogue in a suitable and comprehensible manner.

1 The contracting authority may invite tenders for framework

agreements with one or more providers, which aim to define the

conditions for the services to be procured over a specific period,

in particular regarding their price and, where applicable, the

estimated quantities. Based on such a framework agreement, the

contracting authority may conclude individual contracts during its term.

2 Framework agreements may not be used with the intention or

effect of hindering or eliminating competition.

3 The term of a framework agreement shall be a maximum of

five years. Automatic extension is not possible. In justified cases,

a longer term may be provided for.

4 If a framework agreement is concluded with only one provider,

the individual contracts based on this framework agreement shall be

concluded according to the conditions of the framework agreement.

For the conclusion of individual contracts, the contracting authority

may invite the respective contractual partner in writing to complete

its offer.

Intercantonal Agreement on Public Procurement

5 If, for sufficient reasons, framework agreements are concluded

with several providers, the conclusion of individual contracts shall

take place, at the discretion of the contracting authority, either

according to the conditions of the respective framework agreement

without a renewed call for tenders or according to the following

procedure

a. before concluding each individual contract, the contracting authority

shall consult the contractual partners in writing and inform them

of the specific need;

b. the contracting authority shall set the contractual partners a

reasonable deadline for submitting offers for each individual contract;

c. offers must be submitted in writing and remain binding for the

duration specified in the request;

d. the contracting authority shall conclude the individual contract with

the contractual partner who submits the best offer based on the

criteria defined in the tender documents or the framework agreement.

Conditions for Participation

Chapter 5: Award Requirements

1 The client ensures, within the scope of the procurement process

and when providing the awarded services, that the tenderer and its subcontractors meet the conditions for participation, namely the requirements under Article 12, have paid the due taxes and social security contributions, and refrain from inadmissible competition agreements.

2 The client may require the tenderer to demonstrate compliance with the conditions for participation, in particular through a self-declaration or inclusion in a register.

3 The client shall announce in the invitation to tender or in the tender documents when and which proofs are to be submitted.

Eligibility Criteria

1 The client definitively determines the criteria for the suitability of the bidder in the tender or in the tender documents. The criteria must be objectively necessary and verifiable with regard to the procurement project.

2 The suitability criteria may particularly concern the professional, financial, economic, technical, and organizational capability, as well as the experience of the bidder.

Intercantonal Agreement on Public Procurement 720.1

3 The client specifies in the tender or in the tender documents by when which evidence must be submitted.

4 The client may not make it a condition that the bidder has already received one or more public contracts from a client subject to this Agreement.

1 The contracting authority or the authority responsible for registers

by legal decree may maintain a register of providers who,

on the basis of their suitability, meet the requirements for undertaking public

contracts.

2 The following information must be published on the federal and cantonal

internet platforms

a. Location of the register;

b. Information on the criteria to be fulfilled;

c. Examination methods and registration conditions;

d. Duration of validity and procedure for renewing the entry.

3 A transparent procedure must ensure that the submission of applications,

the examination or re-examination of suitability, and the

registration of an applicant in the register or their deletion

from the register are possible at any time.

4 In a concrete procurement project, providers who are not listed

in a register are also admitted, provided they

furnish proof of suitability.

5 If the register is abolished, the providers listed therein

will be informed.

**Intercantonal Agreement on Public Procurement**

**720.1**

1 The contracting authority evaluates the tenders based on performance- and award-related award criteria. In addition to the price and quality of a performance, the contracting authority may particularly consider criteria such as suitability, deadlines, technical value, economic efficiency, life cycle costs, aesthetics, sustainability, plausibility of the tender, creativity, customer service, delivery conditions, infrastructure, innovation content, functionality, service readiness, professional competence or efficiency of the methodology.

2 Outside the scope of international treaties, the contracting authority may additionally consider the extent to which the tenderer offers training places for apprentices in vocational education, jobs for older employees or reintegration for long-term unemployed persons.

3 The contracting authority shall announce the award criteria and their weighting in the invitation to tender or in the tender documents. If solutions, methods or procedures are the subject of the procurement, the announcement of the weighting may be waived.

4 For standardized services, the award may be made exclusively based on the criterion of the lowest total price.

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**Technical Specifications**

1 The contracting authority shall specify the required technical specifications in the tender invitation or the tender documents. These define the characteristics of the procurement item, such as function, performance, quality, safety, and dimensions or production processes, and regulate requirements for labelling and packaging.

2 When determining the technical specifications, the contracting authority shall, where possible and appropriate, rely on international standards, otherwise on technical regulations used in Switzerland, recognized national standards, or industry recommendations.

3 Specific firms or brands, patents, copyrights, designs or types, as well as references to a specific origin or specific producers, are not permissible as technical specifications, unless there is no other sufficiently precise or comprehensible way of describing the performance and the contracting authority in this case includes the words "or equivalent" in the tender documents. The equivalence must be proven by the tenderer.

4 The contracting authority may provide for technical specifications for the preservation of natural resources or the protection of the environment.

Joint Ventures

and Subcontractors

1 Bid consortia and subcontractors are permitted, unless the client excludes or restricts them in the tender or tender documents.

2 Multiple applications by subcontractors or by bidders within bid consortia are only possible if expressly permitted in the tender or tender documents.

3 The characteristic performance must generally be rendered by the bidder.

Lots and partial services

1 The provider must submit a comprehensive offer for the subject of procurement.

2 The contracting authority may divide the subject of procurement into lots and award them to one or more providers.

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Intercantonal Agreement on Public Procurement 720.1

3 If the contracting authority has formed lots, providers may submit an offer for several lots, unless the contracting authority has stipulated otherwise in the tender documents. It may stipulate that a single provider can only receive a limited number of lots.

4 If the contracting authority reserves the right to require providers to collaborate with third parties, it must announce this in the tender documents.

5 The contracting authority may reserve the right in the tender documents to award partial services.

1. Providers are free to propose variants in addition to the offer of the services described in the tender. The contracting authority may limit or exclude this possibility in the tender.

2. A variant is understood to be any offer that can achieve the procurement objective in a manner other than that intended by the contracting authority.

1 Offers and applications to participate must be submitted in writing, complete

in form and on time according to the information in the tender requirements

or in the tender documents.

2 They may be submitted electronically if this is provided for in the

tender or in the tender documents and the requirements defined

by the contracting authority are met.

Chapter 6: Course of the Award Procedure

Content of the Invitation to Tender

The publication of an invitation to tender shall contain at least the following information

a. Name and address of the contracting authority;

b. Type of contract and procedure, as well as the relevant CPV classification, and for services, additionally the relevant CPC classification7;

c. Description of the services, including type and quantity, or if the quantity is unknown, an estimate thereof, as well as any options;

d. Place and time of service provision;

e. Where applicable, a division into lots, a restriction on the number of lots, and the allowance of partial bids;

f. Where applicable, a restriction or exclusion of bidder consortia and subcontractors;

g. Where applicable, a restriction or exclusion of variants;

h. For recurring services, where possible, an indication of the date of the subsequent invitation to tender and, where applicable, a note that the bid submission period will be shortened;

i. Where applicable, an indication that an electronic auction will take place;

j. Where applicable, the intention to conduct a dialogue;

k. The deadline for submitting bids or requests to participate;

l. Formal requirements for submitting bids or requests to participate, where applicable, the requirement to submit performance and price in two separate envelopes;

m. Language or languages of the procedure and the bid;

n. The suitability criteria and the required proofs;

o. In a selective procedure, where applicable, the maximum number of bidders to be invited to submit bids;

p. The award criteria and their weighting, provided that this information is not contained in the tender documents;

q. Where applicable, the reservation to award partial services;

r. The validity period of the bids;

s. The source for the tender documents and, where applicable, a cost-covering fee;

t. An indication of whether the procurement falls within the scope of international treaties;

u. Where applicable, pre-qualified bidders admitted to the procedure;

v. Information on legal remedies.

6 CPV = "Common Procurement Vocabulary" (Common Vocabulary for Public Procurement of the European Union).

7 CPC = "Central Product Classification" (Central Product Classification System of the United Nations).

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720.1 Intercantonal Agreement on Public Procurement

To the extent that this information is not already included in the call for tenders, the tender documents shall provide information on

a. Name and address of the contracting authority;

b. the subject matter of the procurement, including technical specifications and conformity certificates, plans, drawings and necessary instructions, as well as details of the quantity requested;

c. formal requirements and conditions for participation for tenderers, including a list of information and documents that tenderers must submit in connection with the conditions for participation, as well as any weighting of the qualification criteria;

d. the award criteria and their weighting;

e. if the contracting authority conducts the procurement electronically: any requirements for authentication and encryption for the electronic submission of information;

f. if the contracting authority intends to use an electronic auction: the rules according to which the auction will be conducted, including the designation of those elements of the bid that can be adjusted and will be evaluated based on the award criteria;

g. the date, time, and place for the opening of tenders, if the tenders are opened publicly;

h. all other modalities and conditions required for the preparation of tenders, in particular the currency in which the tender is to be submitted (as a rule, Swiss francs);

i. deadlines for the provision of services.

1 Opening of Bids

In open, selective, and invited bidding procedures, all timely submitted bids shall be opened by at least two representatives of the contracting authority.

**2** A record shall be made of the opening of bids. This record shall include, at a minimum, the names of the persons present, the names of the bidders, the date of submission of their bids, any alternative bids, and the respective total prices of the bids.

**3** If performance and price are to be submitted in two separate envelopes, the procedure for opening the envelopes shall be in accordance with paragraphs 1 and 2, whereby in the record of the opening of the second envelopes, only the total prices shall be recorded.

**4** All bidders shall be granted access to the record upon request, at the latest after the award of the contract.

1 The contracting authority examines the received offers for compliance with formal requirements. Obvious arithmetical errors in the offers shall be corrected ex officio.

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720.1 Intercantonal Agreement on Public Procurement

2 The contracting authority may request bidders to explain their offers. It shall record the request and the answers in writing.

3 If an offer is received whose price appears unusually low compared to other offers, the contracting authority must make appropriate inquiries with the bidder to ascertain whether the conditions for participation have been met and whether the further requirements of the tender have been understood.

4 If performance and price are to be submitted in two separate envelopes, the contracting authority shall first create a ranking list according to the quality of the offers. In a second step, it shall evaluate the total prices.

Review of offers

Correction of offers

Evaluation of offers

Award of contract

1 The contracting authority may clarify the offers with the bidders

regarding the services and the modalities of their provision

in order to determine the most advantageous offer.

2 A clarification shall only take place if

a. only thereby can the contract or the offers be clarified, or the offers

be made objectively comparable according to the award criteria; or

b. changes to the services are objectively and materially necessary, whereby the

subject matter of the services, the criteria, and specifications must not be

adjusted in a way that changes the characteristic service or the potential circle of bidders.

3 A request for a price adjustment is only permissible in connection

with the circumstances described in paragraph 2.

4 The contracting authority shall record the results of the clarification in minutes.

1 Provided that the suitability criteria and the technical specifications are met, the offers will be objectively, uniformly, and transparently examined and evaluated according to the award criteria. The contracting authority shall document the evaluation.

**2 If the comprehensive examination and evaluation of offers require significant effort, and the contracting authority has announced this in the tender documents, it may subject all offers to an initial examination and ranking based on the submitted documents. On this basis, it shall, where possible, select the three highest-ranked offers and subject them to a comprehensive examination and evaluation.**

The most advantageous offer receives the contract.

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Intercantonal Agreement on Public Procurement 720.1

1 The contract with the selected tenderer may be concluded after

the expiry of the period for lodging an appeal against the award, unless

the cantonal administrative court has granted suspensive effect to an

appeal against the award.

2 If an appeal procedure against the award is pending without

suspensive effect having been requested or granted, the contracting

authority shall immediately notify the court of the conclusion of the contract.

1 The contracting authority may cancel the procurement procedure, particularly if

a. it refrains from awarding the public contract for sufficient reasons;

b. no offer meets the technical specifications or other requirements;

c. more advantageous offers are to be expected due to changed framework conditions;

d. the submitted offers do not allow for an economical procurement or significantly exceed the cost framework;

e. there are sufficient indications of an impermissible anti-competitive agreement among the bidders;

f. a material change to the requested services becomes necessary.

2 In the event of a justified cancellation, the bidders have no right to compensation.

1. Exclusion of a Bidder, Revocation of Award

The client may exclude a bidder from a procurement procedure, remove them from a register, or revoke an award already granted to them, if it is determined that one of the following circumstances applies to the bidder, their bodies, an engaged third party, or their bodies

a. they do not or no longer meet the requirements for participation in the procedure, or the lawful conduct of the procurement procedure is prejudiced by their conduct;

b. the offers or requests to participate contain significant formal defects or deviate significantly from the mandatory requirements of a tender;

c. there is a final conviction for an offense to the detriment of the respective client or for a crime;

d. they are subject to seizure or bankruptcy proceedings;

e. they have violated anti-corruption provisions;

f. they resist ordered controls;

g. they fail to pay due taxes or social security contributions;

h. they have performed previous public contracts defectively or have otherwise demonstrated not to be reliable and trustworthy contractual partners;

i. they were involved in the preparation of the procurement, and the resulting competitive disadvantage for other bidders cannot be compensated by suitable means;

j. they have been definitively excluded from future public contracts under Article 45 paragraph 1.

2. Sanctions

The client may furthermore take measures according to paragraph 1 if there are sufficient indications that one of the following circumstances, in particular, applies to the bidder, their bodies, an engaged third party, or their bodies

a. they have made untrue or misleading statements and information to the client;

b. unlawful anti-competitive agreements have been made;

c. they submit an unusually low bid without proving, upon request, that the participation conditions are met, and do not guarantee the contractual performance of the advertised services;

d. they have violated recognized professional rules or committed acts or omissions that impair their professional honor or integrity;

e. they are insolvent;

f. they disregard occupational safety provisions, working conditions, provisions on equal treatment of men and women with regard to equal pay, confidentiality provisions, and provisions of Swiss environmental law or conventions designated by the Federal Council for the protection of the environment;

g. they have violated reporting or permit obligations under the BGSA;

h. they violate the Federal Act of 19 December 1986 against Unfair Competition.

1 The contracting authority or the authority responsible by statutory

order may exclude a bidder or subcontractor who, either personally or through

its organs, has gravely fulfilled one or more of the conditions of Article 44

paragraph 1 letters c and e, and paragraph 2 letters b, f and g, from future

public contracts for a period of up to five years, or impose upon them

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Intercantonal Agreement on Public Procurement 720.1

a fine of up to ten percent of the adjusted tender sum. In minor cases, a warning

may be issued.

2 These sanctioning possibilities apply irrespective of further legal

steps against the defaulting bidder, subcontractor, or their organs. The contracting

authority or the authority responsible by statutory order shall notify the Competition

Commission of any suspicion of unlawful anti-competitive agreements

under Article 44 paragraph 2 letter b.

3 The contracting authority or the authority responsible by statutory

order shall report a legally binding exclusion under paragraph 1 to the InöB. The

InöB shall maintain a non-public list of sanctioned bidders and subcontractors,

stating the reasons for the exclusion and the duration of the exclusion from public

contracts. It shall ensure that every contracting authority can obtain the relevant

information concerning a specific bidder or subcontractor. For this purpose, it may

establish a retrieval procedure. The Federation and the Cantons shall make available

to each other all information collected under this Article. Upon expiration of the

sanction, the entry shall be deleted from the list.

4 If a contracting authority violates this Agreement, the authority responsible

by statutory order shall issue appropriate directives and ensure their compliance.

5 If financial contributions are granted for a public contract, these contributions

may be wholly or partially withdrawn or reclaimed if the contracting authority

violates public procurement regulations.

Chapter 7: Deadlines and Publications, Statistics

1. Determining the deadlines for submitting bids or applications for participation, the contracting authority shall take into account the complexity of the contract, the expected number of subcontracts, and the communication channels.

2. In the domain of international treaties, the following minimum deadlines apply

a. in open procedures: 40 days from the publication of the tender for the submission of bids;

b. in selective procedures: 25 days from the publication of the tender for the submission of applications for participation, and 40 days from the invitation to tender for the submission of bids.

3. Any extension of this deadline must be communicated or published to all bidders in a timely manner.

4. Outside the domain of international treaties, the deadline for submitting bids is generally at least 20 days. For largely standardized services, the deadline can be reduced to not less than 5 days.

1 The client may shorten the minimum time limits under Article 46

Paragraph 2 in cases of proven urgency to not less than

10 days.

2 It may shorten the minimum tender period of 40 days under Article 46

Paragraph 2 by 5 days each, if

a. the tender is published electronically;

b. the tender documents are published electronically simultaneously;

c. tenders are received electronically.

3 It may shorten the minimum tender period of 40 days under Article 46

Paragraph 2 to not less than 10 days, provided it has published a prior

notice containing the following information at least 40 days but no more than 12 months

before the publication of the tender

a. subject of the intended procurement;

b. approximate deadline for the submission of tenders or applications to participate;

c. declaration that interested bidders should inform the client of their

interest in the procurement;

d. source for the tender documents;

e. all other information already available at that time

under Article 35.

4 It may shorten the minimum tender period of 40 days under Article 46

Paragraph 2 to not less than 10 days if it procures recurring

services and indicated the shortened period in a previous tender.

5 Furthermore, in the procurement of commercial goods

or services or a combination of both, the client may in any case

shorten the deadline for the submission of tenders to not less than 13 days,

provided it publishes the tender documents electronically simultaneously with the tender. If the client

receives tenders for commercial goods or services electronically,

it may also shorten the period to not less than 10 days.

26

Intercantonal Agreement on Public Procurement 720.1

1.4.24-124

**1 Publications**

In open and selective procedures, the contracting authority publishes

the prior information notice, the invitation to tender, the award, and

the cancellation of the procedure on a joint internet platform for public

procurement operated by the Confederation and the Cantons. It also

publishes awards granted by direct award within the scope of international

treaties.

2 The tender documents are generally made available simultaneously

and electronically. Access to these publications is free of charge.

3 The organization commissioned by the Confederation and the Cantons

with the development and operation of the internet platform may

charge fees or levies from contracting authorities, bidders, and other

persons who use the platform or related services. These are determined

by the number of publications or by the scope of the services used.

4 For every contract within the scope of international treaties that is not

tendered in an official language of the World Trade Organization (WTO),

the contracting authority publishes a summary of the notice in an

official language of the WTO simultaneously with the invitation to tender.

The summary must contain at least

a. the subject matter of the procurement;

b. the deadline for the submission of offers or requests to participate;

c. the source for obtaining the tender documents.

5 Outside the scope of international treaties, consideration must be given

to the linguistic conditions of the area in which the contract is to be

executed.

6 Awards granted within the scope of international treaties must generally

be published within 30 days. The notification must contain the following

information

a. type of procedure applied;

b. subject matter and scope of the contract;

c. name and address of the contracting authority;

d. date of award;

e. name and address of the successful bidder;

f. total price of the successful offer, including value-added tax.

7 The Cantons may provide for additional publication organs.

27

720.1 Intercantonal Agreement on Public Procurement

**Retention of Documents**

**Statistics**

1 The contracting authorities shall keep the relevant documents in connection with a procurement procedure for at least three years from the date of legally binding award.

2 The documents to be kept include

a. the invitation to tender;

b. the tender documents;

c. the record of the bid opening;

d. correspondence regarding the procurement procedure;

e. the clarification protocols;

f. decisions within the framework of the procurement procedure;

g. the accepted offer;

h. data for the traceability of the electronic processing of a procurement;

i. documentation on public contracts awarded by direct award in the area of international treaties.

3 All documents must be treated confidentially for the duration of their retention, unless this agreement provides for disclosure. The duty to provide information remains reserved, to the extent that there is a legal basis for it.

Here is the English translation

1 The Cantons shall compile, within 12 months after the end of each calendar year, for the attention of the State Secretariat for Economic Affairs (SECO), an electronically maintained statistic on the procurements of the preceding year within the scope of international procurement treaties.

2 The statistics shall contain at least the following information

a. The number and total value of public contracts of each contracting authority, broken down by construction, supply, and service contracts, specifying the CPC or CPV classification;

b. The number and total value of public contracts awarded by direct award procedure;

c. If no data can be submitted: estimates for the information pursuant to letters a and b, with explanations of the estimation method used.

3 The total value shall always be indicated including value-added tax.

4 SECO's consolidated statistics shall be publicly accessible, subject to data protection and the protection of business secrets.

28

Intercantonal Agreement on Public Procurement 720.1

Chapter 8: Legal Protection

1. **Opening of Decisions**

The client opens decisions by publishing them or by individual delivery to the bidders. Bidders have no right to be heard before the decision is opened.

2. Decisions subject to appeal must be summarily justified and provided with instructions on the right of appeal.

3. The summary justification for an award includes

a. the type of procedure and the name of the successful bidder;

b. the total price of the successful offer;

c. the decisive characteristics and advantages of the successful offer;

d. where applicable, an explanation of the reasons for a direct award.

4. The client must not disclose information if such disclosure would

a. violate applicable law or harm public interests;

b. impair legitimate economic interests of the bidders; or

c. jeopardize fair competition among bidders.

1. Against decisions of the contracting authorities, an appeal to the Cantonal Administrative Court as the sole cantonal instance is permissible, at least from a complaint value corresponding to the contract value relevant for the invitation to tender procedure.

2. For appeals against procurements by the higher cantonal judicial authorities, the Federal Supreme Court has direct jurisdiction.

3. Foreign bidders are only permitted to appeal for contracts outside the scope of international treaties if the state in which they are domiciled grants reciprocity.

1 Decisions that may be challenged by appeal are exclusively the

following

a. the invitation to tender;

b. the decision on the selection of bidders in the selective procedure;

c. the decision on the inclusion of a bidder in a register or on the deletion of a bidder from a register;

d. the decision on requests for recusal;

e. the award;

f. the revocation of the award;

g. the cancellation of the procedure;

h. the exclusion from the procedure;

i. the imposition of a sanction.

2 Orders in the tender documents, whose meaning is recognizable, must be challenged together with the invitation to tender.

3 Appeals against the imposition of a sanction are not subject to the provisions of this agreement concerning the right to be heard in administrative proceedings, suspensive effect, and the limitation of grounds for appeal.

4 Decisions under paragraph 1 letters c and i may be challenged by appeal regardless of the contract value.

5 In all other respects, legal protection against decisions under this agreement is excluded.

6 Appeals against the conclusion of individual contracts under Article 25, paragraphs 4 and 5, are excluded.

Suspensive Effect

1 The appeal has no suspensive effect.

2 The cantonal Administrative Court may grant suspensive effect to an

appeal upon request if the appeal appears sufficiently well-founded

and no overriding public interests stand in the way. On the question of

suspensive effect, only an exchange of written submissions usually takes place.

3 A request for suspensive effect that is abusive or contrary to good faith

will not be protected. Claims for damages by the contracting authority

and the successful tenderer are to be judged by the civil courts.

Applicable Law

The disposal and appeal proceedings are governed by the provisions of the cantonal laws concerning administrative legal obligations, unless this agreement stipulates otherwise.

Appeal

period,

grounds for

appeal and

standing

1 Complaints must be submitted in writing and with reasons within

20 days of the notification of the decision.

2 Court holidays do not apply.

30

Intercantonal Agreement on Public Procurement 720.1

3 The following may be challenged by means of a complaint

a. violations of law, including exceeding or abusing

discretion; and

b. the incorrect or incomplete ascertainment of the legally relevant

facts.

4 The appropriateness of a decision cannot be reviewed in the context

of a complaint procedure.

5 Only those who demonstrate that they can and intend to provide the requested services or substitutable services may file a complaint against awards made in a sole-source procedure. Only the undue application of the sole-source procedure or the award being made due to corruption may be challenged.

1 In summary proceedings, there is no right to inspect the files.

2 In appeal proceedings, the appellant shall, upon request, be granted access to the assessment of their offer and to other decision-relevant procedural files, unless overriding public or private interests dictate otherwise.

1 The appeals body may decide on the merits of the case itself or refer it back to the lower instance or the contracting authority. In the event of a referral, it must issue binding instructions.

2 If the appeal is found to be justified and the contract with the successful tenderer has already been concluded, the appeals body shall determine to what extent the contested decision violates the applicable law.

3 Simultaneously with the determination of the legal violation, the appeals body shall decide on any claim for damages.

4 Damages shall be limited to the necessary expenses incurred by the tenderer in connection with the preparation and submission of its offer.

If the appellate body has to decide on a request for revision, Article 58 paragraph 2 applies mutatis mutandis.

1.4.24-124

31

720.1 Intercantonal Agreement on Public Procurement

Chapter 9: Authorities

Commission

Federal-Cantonal

Procurement

Intercantonal

Body

1 The monitoring of Switzerland’s international obligations in the field of public procurement lies with the Federal-Cantonal Public Procurement Commission (FCPPC). This commission is composed of an equal number of representatives from the Confederation and the cantons. The secretariat is provided by the State Secretariat for Economic Affairs (SECO).

2 The FCPPC performs, in particular, the following tasks

a. Elaboration of Switzerland’s position in international bodies for the attention of the Federal Council and advising Swiss negotiation delegations;

b. Promotion of information and experience exchange between the Confederation and the cantons and the development of recommendations concerning the implementation of international obligations in Swiss law;

c. Cultivation of relations with foreign supervisory authorities;

d. Providing advice and mediation in individual cases of disputes related to transactions falling under letters a to c.

3 If there are indications that Switzerland’s international obligations regarding public procurement are being violated, the FCPPC may intervene with the authorities of the Confederation or the cantons and request them to clarify the facts and to take the necessary measures if shortcomings are identified.

4 The FCPPC may prepare expert opinions or commission experts to do so.

5 It adopts its own rules of procedure. These require the approval of the Federal Council and the FDJP.

¹ The members of the cantons participating in the agreement within the Swiss Conference of Building, Planning and Environmental Directors (BPUK) form the Intercantonal Body for Public Procurement (InöB).

² The InöB performs, in particular, the following tasks

a. Enactment of this agreement;

b. Amendment of this agreement, subject to the consent of the participating cantons;

c. Adjustment of the thresholds;

32

Intercantonal Agreement on Public Procurement 720.1

d. Proposal to the Federal Council for exemption from the application of this agreement and receipt of corresponding requests from contracting authorities pursuant to Article 7 paragraph 1 (exemption clause);

e. Control over the implementation of this agreement by the cantons and designation of a control body;

f. Maintenance of a list of sanctioned bidders and subcontractors in accordance with Article 45 paragraph 3;

g. Regulation of the organization and procedure for the application of this agreement;

h. Activities as a contact point within the framework of international agreements;

i. Designation of the cantonal delegates in national and international bodies and approval of the corresponding rules of procedure.

³ The InöB takes its decisions by a three-quarters majority of those present, provided that at least half of the participating cantons are represented. Each participating canton has one vote, which is exercised by a member of the cantonal government.

⁴ The InöB cooperates with the conferences of the heads of the affected cantonal directorates, with the specialized conferences of the cantons, and with the Confederation.

1 The Cantons shall monitor compliance with this Agreement.

2 The InöB shall deal with notifications from Cantons regarding compliance

with this Agreement by other Cantons.

3 Private individuals may address notifications regarding compliance with this

Agreement by the Cantons to the InöB. Such a notification shall not confer

party rights or a claim to a decision.

4 The InöB shall issue regulations in this regard.

10. Chapter: Final Provisions

1 Each Canton may, by declaration to the InöB, join the Agreement.

Accession,

Withdrawal,

Amendment and

2 Withdrawal may take effect at the end of a calendar year. It Termination

must be notified to the InöB six months in advance.

1.4.24-124

33

Intercantonal Agreement on Public Procurement

3 Accession and withdrawal, as well as any amendment or termination

of this Agreement, shall be brought to the attention of the Federal Chancellery by the InöB.

4 The Cantons may, in observance of Switzerland’s international

obligations, issue implementing provisions, particularly with regard to

Articles 10, 12, and 26.

Transitional Law

Entry into Force

1 Procurement procedures initiated before the entry into force of this Agreement shall be concluded under the previously applicable law.

2 In the event of a canton's withdrawal, this Agreement shall apply to the award of public contracts advertised before the end of the calendar year in which the withdrawal becomes effective.

1 This agreement shall enter into force as soon as two cantons

have acceded to it. The entry into force shall be communicated to the Federal Chancellery by

the InöB.

2 For cantons that have not acceded to this agreement, the

agreement of March 15, 2001, shall continue to apply.

34

Intercantonal Agreement on Public Procurement 720.1

Annexes Cantons

Annex 1

Threshold values in the area covered by international treaties

Annex 2

Threshold values and procedures in the area not covered by

international treaties

Annex 3

Core Conventions of the International Labour Organization (ILO)

Annex 4

Applicable Conventions for the protection of the environment

and natural resources

1.4.24-124

35

720.1 Intercantonal Agreement on Public Procurement

Annex 1

to the IVÖB of November 15, 2019

Threshold values in the area covered by international treaties

a. Government Procurement Agreement GPA

(WTO Agreement on Government Procurement)

Contracting Authorities

Cantons

Authorities and public

enterprises in the water, energy, transport, and

telecommunications sectors

Contract Value CHF

(Contract Value SDR)

Construction Services

(Total value)

CHF 8,700,000

(SDR 5,000,000)

CHF 8,700,000

(SDR 5,000,000)

Supplies

CHF 350,000

(SDR 200,000)

CHF 700,000

(SDR 400,000)

Services

CHF 350,000

(SDR 200,000)

CHF 700,000

(SDR 400,000)

b. According to the Bilateral Agreement between the European

Community and the Swiss Confederation, the following contracting authorities

are subject to the area covered by international treaties

Contracting Authorities

Municipalities/Districts

Private enterprises with exclusive or special

rights in the water, energy, and transport sectors

Public and private enterprises operating

under a special or exclusive right

in the rail transport and gas and heat supply sectors

Public and private enterprises operating

under a special or exclusive right

in the telecommunications sector*

Construction Services

(Total value)

CHF 8,700,000

(EUR 6,000,000)

CHF 8,700,000

(EUR 6,000,000)

CHF 8,000,000

(EUR 5,000,000)

CHF 8,000,000

(EUR 5,000,000)

Contract Value CHF

(Contract Value EURO)

Supplies

CHF 350,000

(EUR 240,000)

CHF 700,000

(EUR 480,000)

CHF 640,000

(EUR 400,000)

CHF 960,000

(EUR 600,000)

Services

CHF 350,000

(EUR 240,000)

CHF 700,000

(EUR 480,000)

CHF 640,000

(EUR 400,000)

CHF 960,000

(EUR 600,000)

* This area is excluded (UVEK Ordinance on Non-Subjection to Public Procurement Law, in particular Annex – SR 172.056.111)

36

Intercantonal Agreement on Public Procurement 720.1

Annex 2

to the IVÖB of November 15, 2019

Threshold values and procedures in the area not covered by international treaties

Types of Procedure

Supplies

(Contract value CHF)

Services

(Contract value CHF)

Construction Services

(Contract value CHF)

Ancillary construction

works

Main construction

works

below

below

below

Direct Award

Procedure

Invitation

Procedure

Open/Restricted

Procedure

150,000

below

250,000

1.4.24-124

150,000

below

250,000

from

250,000

150,000

below

250,000

from

250,000

below

300,000

below

500,000

from

500,000

37

720.1 Intercantonal Agreement on Public Procurement

Annex 3

to the IVÖB of November 15, 2019

Core Conventions of the International Labour Organization (ILO)*

Convention No. 29 of June 28, 1930, concerning Forced or Compulsory Labour

(SR 0.822.713.9);

Convention No. 87 of July 9, 1948, concerning Freedom of Association and

Protection of the Right to Organise (SR 0.822.719.7);

Convention No. 98 of July 1, 1949, concerning the Application of the Principles

of the Right to Organise and to Bargain Collectively (SR 0.822.719.9);

Convention No. 100 of June 29, 1951, concerning Equal Remuneration for Men and

Women Workers for Work of Equal Value (SR 0.822.720.0);

Convention No. 105 of June 25, 1957, concerning the Abolition

of Forced Labour (SR 0.822.721.1);

Convention No. 111 of June 25, 1958, concerning Discrimination

in Respect of Employment and Occupation (SR 0.822.723.8);

Convention No. 138 of June 26, 1973, concerning Minimum Age for Admission to

Employment (SR 0.822.723.8);

Convention No. 182 of June 17, 1999, concerning the Prohibition and

Immediate Action for the Elimination of the Worst Forms

of Child Labour (SR 0.822.728.2).

* In addition to the core conventions according to this annex, the contracting authority may require compliance with principles from other conventions of the International Labour Organization (ILO), insofar as Switzerland itself has ratified them, as essential international labour standards.

38

Intercantonal Agreement on Public Procurement 720.1

Annex 4

to the IVÖB of November 15, 2019

Applicable Conventions for the protection of the environment and natural

resources

Vienna Convention of March 22, 1985, for the Protection of the Ozone Layer

(SR 0.814.02) and the Montreal Protocol of September 16, 1987, on substances

that deplete the ozone layer, concluded under this Convention (SR 0.814.021);

Basel Convention of March 22, 1989, on the Control of Transboundary Movements

of Hazardous Wastes and their Disposal (SR 0.814.05);

Stockholm Convention of May 22, 2001, on Persistent Organic Pollutants (SR 0.814.03);

Rotterdam Convention of September 10, 1998, on the Prior Informed Consent

Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (SR 0.916.21);

Convention of June 5, 1992, on Biological Diversity (SR 0.451.43);

United Nations Framework Convention on Climate Change of May 9, 1992 (SR 0.814.01);

Convention on International Trade in Endangered Species of Wild Fauna and Flora

of March 3, 1973 (SR 0.453);

Convention on Long-Range Transboundary Air Pollution of November 13, 1979, and

the eight protocols ratified by Switzerland under this Convention (SR 0.814.32).

1.4.24-124

39

Intercantonal

Body

720.1

Intercantonal Agreement on Public Procurement

Annex B

Intercantonal Agreement

on Public Procurement

of March 15, 2001