The revision of public procurement law is drawing to a close. The new Federal Law on Public Procurement (LMP) is scheduled to come into force on January 1, 2021. The intercantonal agreement (AIMP) will come into force as soon as two cantons have signed up to it, which should be the case by the end of 2020.
A definition of public procurement will be included in the law. A public contract will be characterized by the following elements (art. 8 LMP/AIMP): (1) a contract concluded between a contracting authority and a bidder, (2) with a view to the performance of a public task, (3) of an onerous nature, (4) an exchange of services and counter-services, with the bidder providing the characteristic service.
Furthermore, the delegation of a public task or the granting of a concession will be subject to public procurement law when the bidder is granted exclusive or special rights, which it exercises in the public interest in return for direct or indirect remuneration or compensation (art. 9 LMP/AIMP). On the other hand, concessions that in no way concern a public interest will not be covered.
It should be pointed out that delegations and concessions will be subject to the provisions governing public contracts not subject to international agreements. Competitive bidding will therefore not have to be open to foreigners, whatever the value of the contract.
The notion of “public task” is not defined. According to some authors, it means a constitutional or legislative mandate that the State must fulfill, or even guarantee, if it is entrusted to an actor. Others take a broader view, encompassing all activities carried out in the general interest. The notion – imprecise – implies a certain vagueness as to the scope of application of this provision.
It should be noted that in the case of the delegation of a public task or the granting of a concession, protection is restricted, since an appeal can only seek a declaration that a decision violates federal law, and thus cannot be annulled.
In terms of procedures, there are also a number of new features:
- Competitive dialogue (art. 24 LMP/AIMP): this will enable the contracting authority to enter into a dialogue with bidders with a view to concretizing the subject of the contract and developing and defining the applicable solutions or procedures. In other words, in complex contracts, it involves clarifying with bidders the purpose and solutions of the contract to be awarded. The dialogue will draw on the know-how and experience of the bidders to put into practice the requirements formulated by the contracting authority as to the purpose of the contract, or the solutions or processes proposed by the bidders.
This instrument can be used in open or selective procedures. It cannot be used in an invitational procedure.
The dialogue may not concern price, as this would violate the principle prohibiting negotiations. It is a phase prior to the submission of bids, which, in their final form, will be submitted after the close of the dialogue, on the basis of the award criteria announced in the invitation to tender.
- Electronic auctions (art. 23 LMP/AIMP): these are only suitable for standardized services, and the contracting authority’s choice can only be made on the basis of purely quantifiable criteria, such as price where this is the criterion used.
- Framework contracts (art. 25 LMP/AIMP): following a call for tenders, framework contracts are awarded in advance by a decision subject to appeal. Subsequent contracts concluded within the scope of the framework contract, on the other hand, are not subject to an award decision, and any disputes relating to them will be governed by private law.
With regard to the conditions for participation (art. 12 LMP/AIMP), the new law enshrines the general principle of compliance with provisions on the protection of workers, working conditions and gender equality. Environmental protection and the preservation of natural resources are also established as general principles.
Suitability criteria (art. 27 LMP/AIMP) must be objectively necessary and verifiable for the contract in question (art. 27 LMP/AIMP). In addition to professional, financial, economic, technical and organizational skills, experience can also be taken into account (art. 27 al. 2 LMP/AIMP). This criterion can therefore be relevant both at the stage of examining suitability and at the stage of evaluating bids. However, if a bidder has a certain amount of experience which is not perfectly suited to the service required, he cannot be excluded on the grounds of unsuitability. It is at the award stage that the quality of experience will be taken into account.
As for the award criteria (art. 29 LMP/AIMP), the contracting authority evaluates the bids on the basis of performance-related award criteria. In addition to price and quality, these include suitability, deadlines, technical merit, profitability, life-cycle costs, aesthetics, sustainability, plausibility of the offer, price levels in the country where the service is provided, price reliability, creativity, after-sales service, delivery conditions, infrastructure, innovation, functionality, customer service, technical skills and methodological efficiency.
It should be noted that the contract is to be awarded to the bidder who submits the “most advantageous” offer (art. 41 LMP/ AIMP), rather than the “most economically advantageous”. Price and quality will now be on an equal footing. In addition, sustainability criteria – which are considered irrelevant to the market under current law – will be able to be taken into account.
Lastly, rectification of bids will be possible under two alternative conditions (art. 39 LMP/AIMP): (a) if no other means is available to clarify the subject of the contract or the bids, or to make the bids objectively comparable on the basis of the award criteria, or (b) if modifications to the services are objectively and materially necessary, it being specified that, in the latter case, the characteristic service and the circle of potential bidders may not be modified. The principles of transparency, equal treatment and effective competition must of course be borne in mind.
