Kanton Glarus

* Purpose

1 This Agreement aims to open up the market for public procurement of the Cantons, Municipalities and other entities entrusted with Cantonal or Municipal tasks. It also includes third parties, insofar as they are bound by international treaties.

2 It seeks to harmonize procurement rules through jointly determined principles, as well as to implement obligations, particularly those arising from the Government Procurement Agreement (GPA) and the Agreement between the European Community and the Swiss Confederation on certain aspects of public procurement, into Cantonal law.

3 Its objectives are, in particular

a.

b.

c.

d.

1. Kantone als Auftraggeber[[2]](#paragraphtext_content_fn_810297_2_2_c)

| | | | | | --- | --- | --- | --- | | a. | Bauarbeiten Gesamtwert | | 8'700'000 Fr. / 5'000'000 SZR |

| | | | | | --- | --- | --- | --- | | b. | Lieferungen Auftragswert | | 350'000 Fr. / 200'000 SZR |

| | | | | | --- | --- | --- | --- | | c. | Dienstleistungen Auftragswert | | 350'000 Fr. / 200'000 SZR |

2. Behörden und öffentliche Unternehmen in den Sektoren Wasser, Energie, Verkehr und Telekommunikation als Auftraggeberinnen

| | | | | | --- | --- | --- | --- | | a. | Bauarbeiten Gesamtwert | | 8'700'000 Fr. / 5'000'000 SZR |

| | | | | | --- | --- | --- | --- | | b. | Lieferungen Auftragswert | | 700'000 Fr. / 400'000 SZR |

| | | | | | --- | --- | --- | --- | | c. | Dienstleistungen Auftragswert | | 700'000 Fr. / 400'000 SZR |

1. Gemäss bilateralem Abkommen zwischen der Europäischen Gemeinschaft und der Schweizerischen Eidgenossenschaft sind auch folgende Auftraggeberinnen und Auftraggeber dem Staatsvertragsbereich unterstellt

| | | | | | --- | --- | --- | --- | | a. | Gemeinden, Bezirke | | |

| | | | | | --- | --- | --- | --- | | | 1. | Bauarbeiten Gesamtwert | 8'700'000 Fr. / 6'000'000 € |

| | | | | | --- | --- | --- | --- | | | 2. | Lieferungen Auftragswert | 350'000 Fr. / 240'000 € |

| | | | | | --- | --- | --- | --- | | | 3. | Dienstleistungen Auftragswert | 350'000 Fr. / 240'000 € |

| | | | | | --- | --- | --- | --- | | b. | Private Unternehmen mit ausschliesslichen oder besonderen Rechten in den Sektoren Wasser, Energie und Verkehr | | |

| | | | | | --- | --- | --- | --- | | | 1. | Bauarbeiten Gesamtwert | 8'700'000 Fr. / 6'000'000 € |

| | | | | | --- | --- | --- | --- | | | 2. | Lieferungen Auftragswert | 700'000 Fr. / 480'000 € |

| | | | | | --- | --- | --- | --- | | | 3. | Dienstleistungen Auftragswert | 700'000 Fr. / 480'000 € |

| | | | | | --- | --- | --- | --- | | c. | Öffentliche sowie aufgrund eines besonderen oder ausschliesslichen Rechts tätige private Unternehmen im Bereich des Schienenverkehrs und der Gas- und Wärmeversorgung | | |

| | | | | | --- | --- | --- | --- | | | 1. | Bauarbeiten Gesamtwert | 8'000'000 Fr. / 5'000'000 € |

| | | | | | --- | --- | --- | --- | | | 2. | Lieferungen Auftragswert | 640'000 Fr. / 400'000 € |

| | | | | | --- | --- | --- | --- | | | 3. | Dienstleistungen Auftragswert | 640'000 Fr. / 400'000 € |

| | | | | | --- | --- | --- | --- | | d. | Öffentliche sowie aufgrund eines besonderen oder ausschliesslichen Rechts tätige private Unternehmen im Bereich der Telekommunikation[[3]](#enumeration_itemtext_content_fn_408494_2_3_c) | | |

| | | | | | --- | --- | --- | --- | | | 1. | Bauarbeiten Gesamtwert | 8'000'000 Fr. / 5'000000 € |

| | | | | | --- | --- | --- | --- | | | 2. | Lieferungen Auftragswert | 960'000 Fr. / 600'000 € |

| | | | | | --- | --- | --- | --- | | | 3. | Dienstleistungen Auftragswert | 960'000 Fr. / 600'000 € |

1. Die beteiligten Kantone behalten sich das Recht vor

| | | | | | --- | --- | --- | --- | | a. | unter sich bilaterale oder multilaterale Vereinbarungen zur Erweiterung des Anwendungsbereiches dieser Vereinbarung zu schliessen oder ihre Zusammenarbeit auf anderem Weg weiterzuentwickeln; | | |

| | | | | | --- | --- | --- | --- | | b. **\*** | Vereinbarungen mit den Grenzregionen und Nachbarstaaten zu schliessen. | | |

1. Verfahrensarten nach Auftragswerten

| | | | | | --- | --- | --- | --- | | a. | Freihändige Vergabe | | |

| | | | | | --- | --- | --- | --- | | | 1. | Lieferungen | unter 100'000 Fr. |

| | | | | | --- | --- | --- | --- | | | 2. | Dienstleistungen | unter 150'000 Fr. |

| | | | | | --- | --- | --- | --- | | | 3. | Bauarbeiten Baunebengewerbe | unter 150'000 Fr. |

| | | | | | --- | --- | --- | --- | | | 4. | Bauarbeiten Bauhauptgewerbe | unter 300'000 Fr. |

| | | | | | --- | --- | --- | --- | | b. | Einladungsverfahren | | |

| | | | | | --- | --- | --- | --- | | | 1. | Lieferungen | unter 250'000 Fr. |

| | | | | | --- | --- | --- | --- | | | 2. | Dienstleistungen | unter 250'000 Fr. |

| | | | | | --- | --- | --- | --- | | | 3. | Bauarbeiten Baunebengewerbe | unter 250'000 Fr. |

| | | | | | --- | --- | --- | --- | | | 4. | Bauarbeiten Bauhauptgewerbe | unter 500'000 Fr. |

| | | | | | --- | --- | --- | --- | | c. | offenes/selektives Verfahren | | |

| | | | | | --- | --- | --- | --- | | | 1. | Lieferungen | ab 250'000 Fr. |

| | | | | | --- | --- | --- | --- | | | 2. | Dienstleistungen | ab 250'000 Fr. |

| | | | | | --- | --- | --- | --- | | | 3. | Bauarbeiten Baunebengewerbe | ab 250'000 Fr. |

| | | | | | --- | --- | --- | --- | | | 4. | Bauarbeiten Bauhauptgewerbe | ab 500'000 Fr. |

1. Die zuständigen Behörden jedes Kantons erlassen Ausführungsbestimmungen, die der Vereinbarung entsprechen müssen.

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

2 The Intercantonal Body is responsible for

a. Amending the agreement, subject to the consent of the participating cantons;

b. Issuing procurement guidelines;

c. Adjusting the thresholds listed in the annexes;

c.bis Receiving and forwarding a request for exemption of contracting authorities from subordination to this agreement, provided that other undertakings have the opportunity to offer these services in the same geographical area under essentially the same conditions (claw-back clause);

d. Overseeing the implementation of the agreement by the cantons and designating a control body;

e. Regulating the organisation and procedure for the application of the agreement;

f. Acting as a contact point within the framework of international agreements;

g. Designating the cantonal delegates to national bodies and approving the corresponding rules of procedure.

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

4 The Intercantonal Body cooperates with the conferences of the heads of the affected cantonal directorates and with the Confederation.

Differentiation

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

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2 In the area covered by international treaties, the obligations arising from international treaties are implemented into cantonal law.

3 In the area not covered by international treaties, domestic provisions of the cantons are harmonised.

Types of Contracts

¹ In the area of state treaties, this agreement applies to contracts defined in the state treaties, particularly

a. Construction contracts for the execution of building and civil engineering works;

b. Supply contracts for the procurement of movable goods, namely through purchase, leasing, rent, tenancy, or hire purchase;

c. Service contracts.

² In areas not covered by state treaties, this agreement applies to all types of public contracts.

Threshold Values

1 The threshold values in the area covered by international agreements are listed in Annex 1.

1bis The threshold values in the area not covered by international agreements are listed in Annex 2.

1ter Value-added tax is not taken into account when estimating the contract value.

2 If several construction contracts are awarded for the realization of a structure, the total value of the building and civil engineering works is decisive in the area covered by international agreements. Construction contracts in the area covered by international agreements that individually do not reach a value of two million Swiss francs and collectively do not exceed 20 percent of the value of the entire structure must be awarded at least in accordance with the provisions of the area not covered by international agreements (de minimis clause).

Contracting Authorities

1 In the scope of international treaties, the following are subject to this agreement

a. Cantons, municipalities, and public law institutions at the cantonal and municipal level, with the exception of their commercial or industrial activities;

b. repealed;

c. Authorities and public and private undertakings that are endowed with exclusive or special rights, each in the water, energy, and transport supply sectors, as well as telecommunications. They are subject to this agreement only for contracts that they award for the performance of their activities carried out in Switzerland in these areas;

d. further contracting authorities in accordance with the relevant international treaties.

2 In the area not covered by international treaties, the following are additionally subject to this agreement

a. other providers of cantonal or municipal tasks, with the exception of their commercial or industrial activities;

b. objects and services that are subsidised with public funds to more than 50 percent of the total costs.

3 Procurements in which several contracting authorities according to paragraphs 1 and 2 are involved are subject to the law at the seat of the main contracting authority. Procurements by a joint body are subject to the law at the seat of that body. If the body has no seat, the law at the place of the main activity or the place of performance of the work applies. Deviating agreements remain reserved.

4 Procurements by a contracting authority according to paragraphs 1 and 2, the performance of which does not take place within the legal territory of its seat, are subject to the law at the place of the seat of the contracting authority or at the place of the main activity.

* Providers; Reciprocity

1 This Agreement applies to offers from providers who have their seat or domicile

a. in a participating canton;

b. in a state that is obligated by a state treaty concerning public procurement;

c.

Exceptions

1 This Agreement does not apply to

a. orders placed with institutions for persons with disabilities, charitable

organizations, and penal institutions;

b. orders placed within the framework of agricultural and food aid programs;

c. orders awarded on the basis of a state treaty concerning a jointly

to be realized and financed project;

d. orders awarded on the basis of a special procedure of an international

organization;

e. orders for the procurement of weapons, ammunition, or war material

and for the construction of combat and command infrastructure for

total defense and the army.

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2 The contracting authority is not obliged to award a contract

according to the provisions of this Agreement if

a.

b.

c.

public order or public safety would thereby be jeopardized;

the protection of human, animal, and plant health and life

requires it; or

existing intellectual property rights would thereby be infringed.

4. Procedure

General Principles

1 The following principles shall be observed in the award of contracts

a.

Non-discrimination and equal treatment of bidders;

b.

Effective competition;

c.

Waiver of reverse auctions;

d.

Observance of recusation rules;

e.

Observance of occupational safety and health regulations and working

conditions for employees;

f.

Equal treatment of men and women;

g.

Confidentiality of information.

Types of Procedures

1 The following types of procedures are distinguished

a.

the open procedure, in which the contracting authority publicly advertises the planned contract and all bidders can submit an offer;

b.

the selective procedure, in which the contracting authority publicly advertises the planned contract. All bidders can submit a request to participate. The contracting authority determines, based on suitability criteria, the bidders who may submit an offer. The contracting authority may limit the number of bidders invited to submit an offer in the advertisement if the contract award cannot otherwise be processed efficiently. Effective competition must be ensured in this process;

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bbis the invitation procedure, in which the contracting authority determines which bidders are directly invited to submit an offer without advertisement. The contracting authority must obtain at least three offers if possible;

C. the negotiated procedure (freihändige Verfahren), in which the contracting authority directly awards a contract without advertisement.

2 Anyone organizing a design or general contractor competition shall regulate the procedure in the individual case within the framework of the principles of this agreement. The contracting authority may refer, in whole or in part, to relevant provisions of professional associations, provided that such provisions do not violate the principles of this agreement.

Choice of Procedures

¹ Contracts in the scope of international treaties may optionally be awarded through open or selective procedures. In special cases, in accordance with international treaties, they may be awarded through single-source procurement.

² Contracts not covered by international treaties may, in addition, be awarded through invitation or single-source procurement procedures, in accordance with the thresholds in Annex 2.

³ For procedures not covered by international treaties, the Cantons may set lower thresholds. No reservations regarding reciprocal rights may be derived therefrom.

* Cantonal Implementing Provisions

1 The implementing provisions ensure

a. the necessary publications and the publication of the threshold values;

b. references to non-discriminatory technical specifications;

c. the determination of sufficient deadlines for the submission of offers;

d. a procedure for reviewing the suitability of bidders based on objective and verifiable criteria;

e. the mutual recognition of the qualification of bidders who are entered in permanent lists of the participating cantons;

f. suitable award criteria that ensure the award to the most economically advantageous offer;

g. the award by decision;

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h. the notification and a brief justification of the award;

i. the limitation of cancellation and repetition of the award procedure to important reasons;

j. archiving.

Contract Conclusion

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

after the expiry of the appeal period, unless the

appeal body has granted suspensive effect to the appeal.

2 If an appeal procedure against the award is pending without suspensive effect, the contracting authority shall immediately notify the appeal body of the contract conclusion.

5. Legal Protection

* Right to Appeal and Time Limit

1 Decisions of the contracting authority are subject to an appeal to an independent cantonal body. This body renders a final decision.

1bis The following are considered decisions independently appealable

a. the tender of the contract;

b. the decision on the inclusion of a provider in a permanent list according to Article 13 letter e;

c. the decision on the selection of participants in the selective procedure;

d. the exclusion from the procedure;

e. the award, its revocation, or the cancellation of the procurement procedure.

2 Appeals must be submitted in writing and with reasons within ten days of the notification of the decisions.

3 In the absence of cantonal implementing provisions, the Federal Supreme Court is competent for appeals concerning the application of this agreement.

Grounds for Complaint

1. A complaint may be filed on the following grounds

a. Violations of law, including exceeding or abusing

discretion;

b. Incorrect or incomplete ascertainment of the legally relevant

facts.

2. Inappropriateness cannot be asserted.

3. If cantonal implementing provisions are lacking, the provisions of this

Agreement may be directly asserted.

Suspensive Effect

1 The appeal has no suspensive effect.

2 The appeal authority may, upon request or ex officio, grant suspensive effect if the appeal appears to be sufficiently well-founded and no overriding public or private interests stand in the way.

3 If suspensive effect is ordered at the request of the appellant and this may lead to significant detriment, the appellant may be obliged, within a reasonable period, to provide securities for procedural costs and possible party indemnities. If the security is not provided within the deadline, the decision regarding the suspensive effect becomes void.

4 The appellant is obliged to compensate for any damage resulting from the suspensive effect if they have acted intentionally or with gross negligence.

Decision

1 If the contract has not yet been concluded, the appellate body may decide

to annul the decision and rule on the matter itself, or refer it back to the

contracting authority with or without binding instructions.

2 If the contract has already been concluded and the appeal is found to be

justified, the appellate body shall determine that the decision is unlawful.

**6. Monitoring**

Monitoring and Sanctions

1 The cantons shall monitor compliance with the procurement provisions before and after the award by the contracting authorities and the bidders.

2 They shall provide for sanctions in the event of a breach of the procurement provisions.

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7. Final Provisions

Accession and Withdrawal

1 Every canton may accede to the agreement by submitting its declaration of accession to the Intercantonal Body, which shall notify the Confederation thereof.

2 Withdrawal may take effect at the end of a calendar year. It must be notified to the Intercantonal Body six months in advance, which shall notify the Confederation of the withdrawal.

* **Entry into force**

1 The agreement shall enter into force, as soon as two cantons have acceded to it, upon publication in the Official Collection of Federal Laws and, for further members, upon publication of their accession in the same organ. ¹)

2 The same shall apply to supplements and amendments to the agreement.

3 In relation to the cantons that have not adopted the provisions of 15 March 2001, as amended herein, the unaltered agreement of 25 November 1994 shall continue to apply.

1. Die Vereinbarung gilt für die Vergabe von Aufträgen, die nach dem Inkrafttreten der Vereinbarung ausgeschrieben oder vergeben wurden.

2. Im Fall eines Austrittes gilt die Vereinbarung für die Vergabe von Aufträgen, die vor dem Ende des Kalenderjahres, auf das der Austritt wirksam wird, ausgeschrieben werden.