Public Procurement in Switzerland: Public Contracts Law
Public procurement law governs the procedures by which public bodies (Confederation, cantons, municipalities) acquire supplies, services or construction works. In Switzerland, this law aims to guarantee fair competition, transparency and equal treatment between tenderers. The revised Federal Act on Public Procurement (PPA), in force since 1 January 2021, applies to federal contracts. The Intercantonal Agreement on Public Procurement (ICPA) governs cantonal contracts. PBM Avocats advises and represents companies in Geneva and Lausanne in tendering procedures and appeals.
Types of Award Procedures
| Procedure | Description | Indicative thresholds (federal) |
|---|---|---|
| Open procedure | Public call for tenders; all tenderers may submit an offer | Above WTO thresholds |
| Selective procedure | Pre-selection of tenderers; only qualified ones submit an offer | Variable |
| Invitation procedure | Contracting authority directly invites several tenderers (min. 3) | Intermediate contracts |
| Direct award | Direct award without competitive tendering | Small contracts or emergencies |
Applicable Thresholds in 2024
The application thresholds vary according to the contracting authority and type of contract. For the Confederation (PPA 2021):
- Standard supplies and services: from CHF 150,000 for open procedure
- Construction works: from CHF 2,000,000
- Special services (architecture, engineering, etc.): from CHF 100,000
Beyond the WTO thresholds (international agreements), contracts are subject to the commitments of the WTO Government Procurement Agreement (GPA), which opens competition internationally.
Award Criteria: The Most Economically Advantageous Offer
Since the PPA 2021 reform, the main award criterion is the most economically advantageous offer (MEAO), and no longer the lowest price alone. Secondary criteria may include:
- Quality and technical suitability of the offer
- Price (often weighted at 40-60%)
- Implementation deadlines
- Environmental and social sustainability
- Experience and references of the tenderer
- Innovation and added value of the offer
The criteria and their weighting must be announced in advance in the tender documents (SIMAP). Any change of criteria during the procedure is unlawful and may found an appeal.
Exclusions and Conditions for Participation
Contracting authorities may exclude tenderers in the cases provided for by law:
- Criminal conviction for corruption, money laundering or fraud (art. 44 PPA)
- Violation of collective employment agreements
- Outstanding tax debts or social insurance contributions
- False documents submitted
- Submission of a tender in collusion with other tenderers
Appeals in Public Procurement Matters
In the event of an unlawful decision (exclusion, award to another tenderer), the avenues for appeal are:
- Federal contracts: appeal before the Federal Administrative Court (FAC) within 20 days (art. 56 PPA)
- Geneva contracts: appeal before the Administrative Chamber of the Court of Justice (10-day deadline in public procurement matters under the GE-PPA)
- Vaud contracts: appeal before the Court of Administrative and Public Law of the Cantonal Court
The request for suspensive effect must be formulated immediately as it is not automatic. Without suspensive effect, the contracting authority may sign the contract with the awardee, making any annulment difficult.
When is a public contract subject to the tender procedure?
The thresholds triggering the obligation to call for tenders vary according to the type of contract and the contracting authority (Confederation or cantons). For federal contracts (PPA 2021): supplies and services CHF 150,000, construction works CHF 2,000,000, special services CHF 100,000. For cantonal contracts (ICPA), the thresholds are set in the intercantonal agreements. These thresholds are regularly revised.
What are valid grounds for contesting an award decision?
Frequent grounds for appeal include: violation of the award criteria announced in the tender documents, taking into account criteria that were not announced, manifestly erroneous evaluation of tenders, unlawful exclusion of a tenderer, violation of the principle of equal treatment, or a conflict of interest on the part of the contracting authority.
What is the deadline for contesting an award decision?
The deadline for appealing against an award decision is generally 20 days from notification of the decision (art. 56 PPA for federal contracts). The cantons apply similar deadlines. This deadline is short: it is imperative to act quickly, as soon as you become aware of the award decision. The suspensive effect must also be requested immediately.
Does an appeal in public procurement matters have an automatic suspensive effect?
No. Unlike other areas, an appeal in public procurement matters does not have an automatic suspensive effect (art. 55 PPA). The appeal authority may grant the suspensive effect on urgent application, but only if the conditions are met: plausibility of the right invoked, interest in maintaining the status quo, and weighing of the interests at stake (public vs. excluded tenderer).
Can I obtain damages if I was unlawfully excluded from a public contract?
Yes, but the avenues are limited. If the contract has already been awarded and executed, the unlawfully excluded tenderer may claim limited damages (often loss of profit, sometimes tender costs). Damages are only awarded if the contracting authority is proved to be at fault. Case law tends to be restrictive on this point in Swiss law.