Swiss Supreme Court Tightens Rules For State Providers In Public Procurement Procedures

Author:Dr. Thomas Rihm
Profession:Rihm Attorneys

In January 2015, the Swiss Federal Communications Office (Bakom) invited for a public tender offer for the analysis of Swiss National Television's online offer. Whilst the University of Zurich and Publicom AG, a private consultancy in Zürich, had each lodged an offer, Bakom granted the University of Zurich the analysis project as it had allegedly offered better terms and conditions. Publicom AG filed a complaint with the Swiss Federal Administrative Court (SFAC) and argued that the university's offer was was based on an non-acceptable cross-subsidisation by taxpayers. SFAC approved the complaint and rejected the matter back to the Bakom in 2016, which has now to examine anew whether the University of Zurich must be excluded from the public tender procedure because of alleged distorted competition.

"The Swiss Federal Supreme Court found sufficient evidence that the university's offer was based on cross-subsidisation, since the costs for its project manager were not included in the offer price."

The Swiss Federal Supreme Court shared SFAC's view in these days and rejected an appeal by the Federal Department of Environment, Transport, Energy and Communications (Uvek) against the decision rendered by SFAC, saying that any state supplier must comply with the constitutional principle of fair competition. This is the result of an interpretation of the Federal Law on Public Procurement, says the Swiss Federal Supreme Court, and thus contradicts Uvek's view that the law in question does not address this topic explicity. According to the Swiss Federal Supreme Court, an infringement of competition neutrality may be given if the offer of the state-owned supplier is...

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