Ordinance on Public Procurement - Scope

1. This regulation governs the procurement and awarding of construction, supply, and service contracts.

2. Contracts are not subject to this regulation if

a) public order and safety are endangered;

b) the protection of life and health of humans, animals, and plants requires it;

c) intellectual property rights would be violated.

1. A distinction is made between an area governed by international treaties and an area not covered by international treaties.

2. In the area governed by international treaties, contracts are processed based on international obligations.

3. The remaining contracts fall under the area not covered by international treaties.

1. Providers are treated equally and not discriminated against.

2. Insofar as there is no reciprocity and the Internal Market Act permits it, deviations from the principles of equal treatment and non-discrimination may be allowed.

1. All information and documents provided by the bidders shall be treated confidentially. No access to files will be granted during the procurement procedure.

2. All information and documents provided by the bidders may not be used or disclosed to third parties without their consent or a legal requirement.

1. If individuals or companies have participated in the tender in such a way that they could influence the award in their favor, they are not permitted to participate in the procurement process.

1. If a contract is awarded to a general contractor, a total contractor, or any other company that engages subcontractors, both the contracting company and every company involved in the execution must comply with the conditions of the law and this regulation.

2. The client can request the disclosure of the names of all companies involved in the execution of the contract.

1. Parties Awarding Contracts Ensure the Following Conditions via Self-Declaration

a) Adherence to applicable occupational safety regulations and working conditions by the offerors,

b) Payment of all due taxes and social security contributions,

c) Absence of involvement in bankruptcy or insolvency proceedings.

2. The awarding parties are entitled to verify the information provided.

1. An awarding authority may revoke the award, exclude bidders from the procurement process, and remove them from the directory of qualified suppliers if they, in particular

a) do not or no longer meet the required suitability criteria;

b) have provided false information to the awarding authority;

c) have not paid taxes, social security contributions, or other public charges;

d) do not guarantee or comply with safety regulations, labor protection regulations, or working conditions;

e) do not ensure equal treatment of men and women;

f) have made agreements that eliminate or significantly impair effective competition;

g) do not comply with environmental protection regulations in production that are comparable to those in Switzerland;

h) are undergoing bankruptcy proceedings or have been threatened with bankruptcy;

i) have behaved professionally misconducted, and this has been established in a judicial proceeding;

j) have violated essential formal requirements of this ordinance and the procurement process, such as non-compliance with submission deadlines, missing signatures, incomplete offers, or changes to the tender documents.

2. In the case of serious violations, bidders may be excluded from future awards for up to five years.

1. An awarding entity may establish a system to evaluate the general suitability of bidders. Qualified bidders shall be included in a public directory.

2. The awarding entity shall publish the introduction of the system as well as the admission criteria, the methods of evaluation, the duration of validity, and the procedure for renewal.

1. A materially interconnected contract shall not be divided. If a contract contains a firm option for follow-up contracts, the total value is decisive.

2. All types of remuneration shall be considered. The federal value-added tax shall not be taken into account.

1. If multiple similar supply or service contracts are awarded, or if a supply or service contract is divided into subcontracts, the following applies

a) the actual total value of the contracts awarded during the last 12 months;

b) the estimated value of recurring contracts in the 12 months following the initial contract.

2. If supply or service contracts are awarded in the form of leasing, rental, or hire purchase, or if no total price is intended, the following applies

a) for contracts with a specified duration, the estimated total value;

b) for contracts with an unspecified duration, the total value for 48 months.

1. If multiple construction contracts are awarded for the realization of a structure, the total value of the building and civil engineering works is decisive in the context of interstate agreements.

2. In areas not covered by interstate agreements, the contract value per individual contract is decisive.

1. Construction Contracts in the Intergovernmental Agreement Sector that individually do not exceed the value of CHF 2,000,000 and collectively do not surpass 20 percent of the total value of the construction project may be awarded according to the cantonal regulations on public procurement.

1. Contracts shall be awarded through the

a) open procedure;

b) selective procedure;

c) invitation procedure;

d) negotiated procedure.

2. For contracts not subject to the interstate treaty area, the choice of procedure is determined by the annex to this regulation.

3. Contracts subject to the interstate treaty area may optionally be awarded through the open or selective procedure.

4. A chosen procurement procedure must be adhered to regardless of the contract value.

1. Regardless of the value of the contract, contracts may be awarded through a negotiated procedure if

a) no bids are received in an open, selective, or invitation procedure, or the bidders do not meet the suitability criteria;

b) only bids are submitted in an open, selective, or invitation procedure that are coordinated with each other or do not meet the essential requirements of the tender;

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

d) due to unforeseeable events, the procurement becomes so urgent that an open, selective, or invitation procedure cannot be conducted;

e) due to unforeseeable events, additional services necessary for the execution or completion of a previously competitively awarded contract must be provided, the separation of which from the original contract would be associated with significant difficulties for the contracting authority for technical or economic reasons. The value of the additional service may not exceed half of the original contract's value;

f) the contract must be awarded to replace, supplement, or expand the original services already provided by the original provider, because only this ensures interchangeability with existing materials or services;

g) the contracting authority procures initial manufacturing of goods (prototypes) or innovative services which are manufactured or developed at its request within the framework of a research, experimental, study, or new development contract;

h) the contracting authority awards a new similar contract referring to a basic contract that was awarded in an open, selective, or invitation procedure and the tender for the basic object indicated that such contracts could be awarded through a negotiated procedure;

i) the contracting authority procures goods on commodity exchanges;

j) the contracting authority can procure goods within the framework of a favorable, time-limited opportunity at a price significantly below the usual prices, especially in liquidation sales;

k) due to a planning or overall service competition, the contract is to be concluded with the winner, provided that the organization of the competition complies with the principles of the public procurement law and this regulation. This particularly applies regarding the publication of an invitation to suitably qualified providers to participate. An independent jury must be appointed for the assessment;

l) the adherence to overriding principles such as confidentiality, professional secrecy, or the protection of personal privacy is otherwise not possible;

m) the contracting authority has announced in advance its intention to conclude the contract with the winner of a study, planning, or overall service competition;

n) compatibility with technical systems of the federation, other cantons, and municipalities must be ensured.

2. In the area of state contract awards, contracting authorities must prepare a report for each contract awarded through a negotiated procedure containing the following information

a) Name of the contracting authority;

b) Country of origin of the service;

c) Value and type of the procured service;

d) The provision of paragraph 1 under which the contract was awarded through a negotiated procedure.

1. In open and selective procedures, contracts are advertised at least in the cantonal official gazette.

2. In the direct award procedure and invitation procedure, an invitation to submit an offer is issued directly.

3. Entities awarding contracts that maintain a directory of suitable providers may also advertise contracts in the context of publishing the directory.

4. For procurements within the scope of international treaties, a summary of the advertisement is additionally published in the Swiss Official Gazette of Commerce (SHAB).

5. The government council may determine that advertisements must also be published on the internet.

1. The call for tenders or the direct invitation shall include at least

a) Name and address of the contracting authority;

b) Subject matter and scope of the contract;

c) Type of procedure;

d) Execution or delivery deadline;

e) Eligibility criteria and required evidence, insofar as tender documents are not provided;

f) Award criteria in order of their importance or weighting, insofar as tender documents are not provided;

g) Place and deadline for the submission of the offer;

h) Address, deadline, and any fees for obtaining the tender documents;

2. If a contract in the international treaty area is not published in French, a summary in French must be attached to the call for tenders. The summary contains the following information

a) Name and address of the contracting authority;

b) Address and deadline for the submission of the offer;

c) Subject matter and scope of the contract;

d) Address where the tender documents can be requested.

1. The Tender Documents Must Include at Least

a) Name and Address of the Contracting Authority;

b) Subject and Scope of the Contract;

c) Designation of the Office from which Additional Information May be Requested;

d) Language of Proposals and Documents;

e) Place and Deadline for Submission of the Proposal;

f) Duration of the Validity of the Proposal;

g) Suitability Criteria and Required Proof;

h) Special Conditions Regarding Variants, Partial Bids, and Grouping of Lots;

i) Award Criteria along with Their Ranking or Weighting;

j) Payment Terms.

1. Any party awarding contracts shall respond to inquiries regarding the tender documents within a short period, provided that the additional information does not confer undue advantages to the inquirer in the subsequent procedure.

2. Important information provided to individuals must also be communicated to all others simultaneously.

1. Requirements or references regarding specific trademarks or trade names, patents, designs or types, as well as a specific origin or producer, are only permissible if there is no sufficiently precise or understandable way to describe the procurement needs, and the words "or equivalent" are included in the tender documents.

2. If bidders deviate from these requirements, they must prove the equivalence of these technical specifications.

1. Any party awarding contracts shall establish deadlines for the submission of requests to participate or for the submission of tenders in such a manner that the bidders have sufficient time to review the documents and to prepare, as well as to submit, the request or tender.

2. The deadlines shall not be shorter than 14 days without special justification.

3. For contracts within the scope of international treaties, the deadlines stipulated in the international agreements shall apply.

1. In the open procedure, all bidders can submit a bid.

1. In the selective procedure, all bidders may submit a request to participate.

2. The contracting authority determines, based on suitability, which bidders can submit an offer. The contracting authority may limit the number of bidders, provided this is announced within the framework of the tender and the procurement process cannot otherwise be conducted economically. If there are enough suitable bidders, the number must not be fewer than three.

3. If the contracting authority maintains a register of suitable bidders, they may select, in addition to the tender, those bidders from the register whom they invite to submit an offer.

1. In the invitation procedure, the suppliers selected by the contracting authority are allowed to submit an offer.

2. Provided there are a sufficient number of suitable suppliers, the contracting authorities shall invite at least three suppliers to submit an offer.

1. In the negotiated procedure, the contract may be awarded directly without conducting a formal procurement procedure, taking into account economic efficiency. Obtaining a competing offer is permissible.

1. Joint offers by multiple providers are permissible.

2. Providers are free to submit variants in addition to the required offer.

3. Different provisions in the tender documents remain reserved.

1. The participants shall submit their applications for participation and their tenders in writing, completely, and in due time to the office designated in the invitation to tender.

2. The tender must bear a legally valid signature.

3. The tender may not be amended after the deadline has expired.

1. The drafting of the offer is generally carried out without compensation.

1. The bids shall remain sealed until the time of opening.

2. Bids shall be opened by at least two authorized representatives.

3. A record of the opening shall be prepared, containing at least the following information

a) Names and signatures of the persons present;

b) Identification of the bidders;

c) Receipt details of the bids;

d) Net prices of the bids.

4. In open and selective procedures, the entered bid amounts shall be communicated to the bidders after the bid opening. After the award is made, the adjusted bid amounts shall be communicated to the bidders.

1. The bids will be evaluated according to uniform criteria.

2. Obvious writing and calculation errors will be corrected.

3. If the information in a bid is unclear, explanations may be requested from the bidders, which must be recorded in writing.

1. If unusually low bids are submitted, the contracting authority may request additional documents and information to verify compliance with the participation and contract conditions.

1. Negotiations between the client and the providers regarding prices, discounts, or changes to the content of the services are not permitted.

2. In the informal procedure, negotiations are allowed.

1. The most economically advantageous offer is awarded the contract.

2. Criteria for determining the most economically advantageous offer include, in particular

a) Price;

b) Quality;

c) Scheduling;

d) Warranty and maintenance services;

e) Customer service;

f) Operating costs;

g) Ensuring the level of training in a profession;

h) Degree of innovation;

i) Aesthetics;

j) Environmental compatibility;

k) Experience;

l) Compatibility with the technical systems of the Confederation, Cantons, and Municipalities.

3. The criteria shall be announced in order of importance or with their weighting within the context of the call for tenders.

4. The award for largely standardized goods may also be made solely based on the criterion of the lowest price.

1. The contract award shall be communicated to the bidders with a brief justification.

2. For contracts subject to the Intercantonal Agreement on Public Procurement, the contracting authority shall, upon request, communicate to the bidders the essential reasons for their non-consideration.

3. Information shall not be disclosed if

a) public interests are violated;

b) legitimate interests of the bidders or fair competition are violated.

1. In the case of contracts within the scope of international treaties, the contracting authority shall publish the award in the cantonal official gazette within 72 days with the following information

a) Type of awarding procedure;

b) Subject and scope of the contract;

c) Name and address of the contracting authority;

d) Date of the award;

e) Name and address of the successful bidder;

f) Price of the successful bid or the lowest and highest prices of the offers included in the awarding procedure.

1. An awarding authority may terminate the procedure for significant reasons, particularly if

a) no bid has been submitted that meets the criteria and technical requirements stipulated in the invitation to tender and tender documents;

b) due to changed framework conditions, or the elimination of competitive barriers, more favorable offers are expected;

c) a substantial modification of the project has become necessary;

d) the valid bids significantly exceed the cost framework.

2. The termination, repetition, or re-initiation of the procedure shall be immediately communicated in writing and substantiated to the bidders.

1. The contract with the provider may be concluded after the award if

a) the appeal period has expired without use;

b) suspensive effect was not granted to the appeal.

2. If an appeal without suspensive effect is pending, the client must immediately notify the individual judge of the superior court of the conclusion of the contract.

1. Planning competitions may be conducted for the development of solution proposals

a) as an ideas competition for generally described and defined tasks;

b) as a project competition for specifically described tasks and for the award of partial or comprehensive implementation of the solution.

2. Comprehensive performance competitions are conducted for the development of solution proposals for specifically described tasks and for the award of the implementation of these solutions.

1. The contracting parties regulate the procedure on a case-by-case basis. They may refer to provisions and recommendations of professional associations, provided that such do not fundamentally contradict this enactment.

2. They announce the competition through an open or selective procedure when the value of the contract reaches the amounts specified for this procedure according to the annex to this enactment.

1. Any entity awarding contracts within the scope of the state treaty shall annually compile statistics on notifiable contracts, in accordance with the directives of the Department of Construction and Economic Affairs.

2. These statistics must be submitted to the Department of Construction and Economic Affairs, which will collate the individual data and forward the aggregate information to the inter-cantonal body for the attention of the federal government.

1. Unless otherwise specified, the award records must be retained for at least three years following the legally valid conclusion of the procedure.

2. The award records include

a) the call for tenders;

b) the tender documents;

c) the tender opening protocol;

d) correspondence and decisions related to the award process;

e) the accepted bid.

1. Subject to specific statutory regulations, the following responsibilities apply to cantonal procurements

a) for contracts valued up to CHF 250,000, the responsible department;

b) for contracts valued over CHF 250,000 up to CHF 5,000,000, the respective sector commission;

c) in all other cases, the government council.

2. The department is authorized to delegate its procurement competence up to CHF 50,000.

3. Municipalities, special-purpose associations, other public-law entities, and third parties, insofar as they are public function holders, regulate their own awarding competences autonomously.

1. The Ordinance of November 13, 2000, on Public Procurement is repealed.

2. The governing council shall determine the commencement.