Public procurement regulation in Switzerland

March 2025

Executive Summary

The Swiss Confederation and its 26 cantons each have their own public procurement regimes. However, due to the major revision of public procurement law as of 1 January 2021, the objective of which was not only to implement the new WTO Agreement on Government Procurement (GPA) 2012 but also to harmonize the public procurement regimes of the Swiss Confederation (national level) and the cantons, the respective regimes are largely identical.

The regimes distinguish between public procurements that fall within the ambit of international treaties and those that do not. Most of the public procurement notices and many of the contract award notices at federal, cantonal and municipal level are published online on www.simap.ch. Apart from that, e-procurement is still not very well developed in Switzerland.

Preliminary Remarks on the Legal Framework in Switzerland

The Swiss Confederation and the 26 cantons each have the power to enact their own public procurement legislation for public procurements by entities on a national and cantonal/municipal level within the framework provided by international and national law. Thus, public procurement in Switzerland is regulated on three levels:

• International level: the WTO Agreement on Government Procurement (GPA), the bilateral Agreement between the European Community and the Swiss Confederation on certain Aspects of Government Procurement (EU-CH Agreement) and the EFTA Convention (Annex R). The EU-CH Agreement and the EFTA Convention extend the ambit of the GPA to municipalities and to additional sectors not mentioned in the GPA.
• National level: the Federal Act on Public Procurement (FAPP), the Ordinance on Public Procurement (OPP) and the Ordinance on the Organisation of Public Procurement of the Federal Administration. All three decrees have been completely revised as part of, or as a follow-up to, the recent major revision of public procurement legislation.
• Cantonal and municipal level: the Intercantonal Agreement on Public Procurement (IAPP) and the Federal Act on the Internal Market (FAIM) provide the legal framework for legislation by the 26 cantons. The IAPP, which has also been completely revised as part of the recent major revision of public procurement legislation, is an inter-cantonal agreement between the different cantons. It has to be incorporated in each canton through cantonal legislation/a cantonal decision to join. However, not all cantons have yet joined the revised IAPP (IAPP 2019). The Canton of Bern has a special regulation: It is not a member of the IAPP 2019, but applies this inter-cantonal agreement as cantonal law with its own legal process. The Canton of Ticino is not expected to join the IAPP 2019 at all. An overview of the member cantons, respectively the status of implementation of the IAPP 2019 by the cantons can be found under the following link.

The regimes distinguish between public procurements that fall within the ambit of international treaties and those that do not. Public procurements falling within the ambit of the international treaties are generally referred to as public procurements in the international treaty area. National and cantonal law contains specific rules for these public procurements which implement Switzerland‘s obligations under these treaties. Both national and cantonal legislation also contain provisions for public procurements outside the international treaty area, i.e. for public procurements (i) below the thresholds set by international law, (ii) by other procuring entities than the ones listed in the international treaties and (iii) for goods and services which are not listed in the international treaties.

Please note that there are only limited remedies available to bidders with regard to public procurements outside the scope of the international treaties.

Simap.ch: The revised public procurement legislation requires public contracting authorities to publish their procurement decisions on this online portal: www.simap.ch (information available in German, French, Italian and English)

In addition or as an alternative, the official journals of the following cantons contain publications of public procurement notices on the cantonal and municipal level:

• Official Journal of the Canton of Aarau (“Amtsblatt des Kantons Aargau”)
• Official Journal of the Canton of Appenzell Ausserrhoden (“Amtsblatt des Kantons Appenzell Ausserrhoden”)
• Official Journal of the Canton of Appenzell Innerhoden (“Appenzeller Volksfreund”) (not available online)
• Official Journal of the Canton of Geneva («Feuille d’avis officielle de la République et Canton de Genève»)
• Official Journal of the Canton of Graubünden (“Amtsblatt des Kantons Graubünden”)
• Official Journal of the Canton of Jura («Journal officiel de la République et Canton du Jura»)
• Official Journal of the Canton of Luzern (“Luzerner Kantonsblatt”)
• Official Journal of the Canton of Neuchâtel («Feuille officielle de la République et Canton de Neuchâtel») (registration required)
• Official Journal of the Canton of Nidwalden (“Amtsblatt des Kantons Nidwalden”)
• Official Journal of the Canton of Obwalden (“Amtsblatt des Kantons Obwalden”)
• Official Journal of the Canton of Ticino (“Foglio Ufficiale della Repubblica e Cantone Ticino”)
• Official Journal of the Canton of Thurgau (“Amtsblatt des Kantons Thurgau”)
• Official Journal of the Canton of Wallis (“Bulletin Valais / Wallis”)

The thresholds differ depending on whether the contract in question falls under the FAPP or the IAPP, and whether it falls within the scope of international treaties or not.

Thresholds applicable on the federal level within the scope of international treaties (in Swiss francs; Annex 4 FAPP):

GPA

EU-CH Agreement

Thresholds applicable on the federal level outside the scope of international treaties (in Swiss francs; Annex 4 FAPP):

Thresholds applicable on the cantonal level within the scope of international treaties (in Swiss francs; Annex 1 IAPP):

GPA

EU-CH Agreement

Thresholds applicable on the cantonal level outside the scope of international treaties (in Swiss francs; Annex 2 IAPP):

Please note that the cantons are free to stipulate lower thresholds.

Swiss public procurement law knows four different procurement types of procedures:

• Open procedure („offenes Verfahren”): All interested providers/suppliers may submit an offer after the planned procurement has been published (Art. 18 FAPP/IAPP).
• Selective procedure (two-step procedure; „selektives Verfahren”): All interested providers/suppliers first submit their request to participate in the procurement procedure before the contracting authority decides, based on previously published qualitative selection criteria, which providers/suppliers it wants to invite to submit an offer (Art. 19 FAPP/IAPP).
• Invitation procedure („Einladungsverfahren”): The contracting authority invites a certain amount of providers/suppliers, if possible at least three, to submit an offer without prior publication of the planned procurement (Art. 20 FAPP/IAPP).
• Limited procedure (direct award procedure; „freihändiges Verfahren”): The contracting authority directly awards the contract to the provider/supplier of its choice (Art. 21 FAPP/IAPP).
• A negotiation procedure does not exist in Switzerland. Negotiations (bidding rounds) in public procurement proceedings are not permitted (Art. 11 d FAPP/IAPP; except, of course, in the limited procedure; for the different types of procedural instruments, see below)

The choice of procedure type depends primarily on the value of the contract and the thresholds (Art. 16 I FAPP/IAPP; for the thresholds, see para. 2 above). If the contract value is above the threshold set for a particular procedure, the contracting authority must use the corresponding procedure and may not choose a lower-level procedure (for exceptions with regard to the limited procedure, see below). Conversely, the contracting authority may always voluntarily choose a higher-level procedure (i.e. an open procedure / selective procedure or an invitation procedure), even if the thresholds for that higher-level procedure are not reached. However, if the contracting authority voluntarily opts for a higher-level procedure and declares this in the invitation to tender, it is bound to this choice for the rest of the procedure and may not revert to a lower-level procedure.

·       If the contract value exceeds the relevant threshold for the open/selective procedure, the contracting authority is free to choose between the open and the selective procedure.

• Outside the international treaty area, the contracting authority may also use the invitation procedure (Art. 20 I FAPP/IAPP), provided that the thresholds for the open and selective procedure are not reached. The direct award procedure is applicable if the relevant threshold for the invitation procedure is not reached or, irrespective of the threshold value, if certain requirements are fulfilled (Art. 21 FAPP/IAPP; see below).
• The direct award procedure may in principle only be used if the relevant threshold for the open/selective procedure or the invitation procedure is not reached. However, the contracting authority may award a contract using the direct award procedure irrespective of the threshold value if certain exemption requirements are fulfilled (examples: no tenders have been submitted in the open or selective procedure, due to technical reasons only one provider/supplier is in the position to provide the required goods/services or, due to an unforeseeable event, the procurement is of such urgency that there is no time for an open or selective procedure; Art. 21 II FAPP/IAPP).

Within the framework of one of the permissible types of procedures, the contracting authority may organize a design contest or a competition to conduct studies or award a study contract (Art. 22 FAPP/IAPP), hold an electronic auction (Art. 23 FAPP/IAPP) or conduct a dialogue (Art. 24 FAPP/IAPP). These procedural instruments are not types of procedures themselves, but can be applied within the aforementioned procedures:

• Design contests or study contracts can be conducted to develop solutions for general or specific tasks and are therefore particularly suitable for projects with a greater degree of creative freedom. The contracting authority may only award the follow-up contract to the winner, if the contracting authority reserved the right in the invitation to tender to award the subsequent contract in a direct award procedure (Art. 21 II let. i no. 3 FAPP/IAPP).
• For the procurement of standardized goods, work or services, the contracting authority may hold an electronic auction. After the pre-qualification phase, in which the contracting authority verifies the eligibility criteria and the technical specifications, the tenderers can outbid or underbid each other in the actual auction.
• In case of complex contracts, intellectual services or the procurement of innovative goods, work or services, the contracting authority may conduct a dialogue with the aim of specifying the subject matter of the supply and identifying and defining the solutions or procedures. The dialogue enables the contracting authority to work with selected tenderers to develop possible solutions or approaches, with the aim of producing a solution description at the end of the dialogue that appropriately reflects the requirements of the contracting authority as well as the capabilities and capacities of the tenderers.

Further, the contracting authority may issue an invitation to tender for agreements with one or more tenderers with the aim of determining the terms for the goods, work and services to be procured over a given time period, in particular with regard to their price and, where appropriate, the quantities envisaged (so called framework agreements; "Rahmenverträge"). The contracting authority may then conclude individual contracts based on such a framework agreement during its term (Art. 25 FAPP/IAPP).

At both federal and cantonal level, there is an exhaustive list of decisions which can be appealed, consisting of: the invitation to tender, the decision on the choice of tenderers in the selective procedure, the decision to include a tenderer on a list (of tenderers meeting certain eligibility criteria) or to remove a tenderer from such list, the decision on recusal requests, the award, the revocation of the award, the abandonment of the procedure, the exclusion from the procedure and the imposition of a sanction (Art. 53 I FAPP/IAPP). Further, even these decisions, with a few exceptions, can only be appealed if the contract value exceeds a certain threshold:

• At the federal level, in the case of supplies of goods and services, the contract value needs to exceed the threshold for the invitation procedure, and in the case of a construction work, the threshold for the open or selective procedure (Art. 52 I FAPP). Furthermore, in the case of contracts outside the scope of international treaties, the appeal may only seek a declaration that a decision violates federal law and foreign tenderers may only appeal if the state in which they are domiciled grants reciprocal rights (Art. 52 II FAPP).
• On the cantonal level, a decision can only be appealed if the contract value exceeds the relevant threshold for the invitation procedure. Here as well, for contracts outside the scope of international treaties, foreign tenderers are only entitled to an appeal if their country of domicile grants reciprocal rights (Art. 52 IAPP).

A decision of a contracting authority, at both federal and cantonal level, must be appealed within 20 days following publication of the decision or, if earlier, notification of the decision to the respective party; please note that there are no legal holidays (Art. 56 FAPP/IAPP). At the time of writing, an exception still applied in the cantons of Geneva, Obwalden, Appenzell Ausserrhoden and Ticino, where the 10-day time limit under the public procurement regime prior to the IAPP 2019 still applied (see Executive Summary above).

Appeals against decisions of the federal and cantonal review bodies to the Federal Supreme Court must be filed within 30 days (Art. 100 Federal Supreme Court Act). Further appeals are precluded after these time limits. 

In the case of contracts outside the scope of international treaties, the contracting authority may conclude the contract with the selected tenderer after the award decision (Art. 42 I FAPP).

In the case of contracts within the scope of international treaties, the contracting authority may not conclude the contract until the time limit for an appeal has expired (see answer to question 5 above) or, if an appeal has been filed, until the review body has decided whether to grant suspensive effect to the appeal or not (Art. 42 II FAPP/IAPP; see answer to question 9 below).

• Federal level: Federal Administrative Court (Art. 52 FAPP).
• Cantonal level: The cantonal administrative court as the only cantonal instance (Art. 52 I IAPP and Art. 9 II FAIM)
• Decisions of both the Federal Administrative Court and the cantonal administrative courts may be appealed to the Federal Supreme Court if the estimated contract value exceeds the applicable threshold under the FAPP and a legal question of fundamental importance arises (Art. 82 and 83 let. f Federal Supreme Court Act).

On a federal level: Filing fees for an appeal depend on the (estimated) contract value and, generally, vary between 200 and 50'000 Swiss francs (Federal Administrative Court) or between 200 and 100'000 Swiss francs (Federal Supreme Court). The filing fees will be reimbursed if the appellant succeeds.

On a cantonal level: Filing fees for an appeal vary from canton to canton. 

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures? 

An appeal does not automatically have a suspensive effect (Art. 54 I FAPP/IAPP). Therefore, an appellant must request interim measures from the Federal Administrative Court or the cantonal administrative court. The competent court will grant suspensive effect if the appeal appears to be sufficiently justified and there is no overriding public interest to the contrary. At the federal level, however, suspensive effect may only be granted for appeals in the context of public procurements that fall in the scope of international treaties (Art. 54 II FAPP/IAPP). 

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC

It is disputed in Switzerland whether a contract which has been concluded in violation of public procurement law (i) is void or must be cancelled or terminated or (ii) whether the review body may only declare its invalidity and award damages (Art. 58 III FAPP/IAPP; Art. 9 III FAIM). Damages are limited to the necessary expenses incurred by the tenderer in connection with preparing and submitting its offer (Art. 58 IV FAPP/IAPP). 

11. To which extent can procurement contracts be amended after awarding?

Generally, it is forbidden to amend procurement contracts after awarding. However, it is permitted (i) to specify the contract, and/or (ii) to amend it in its material scope if the amendments are non-substantial, and/or (iii) to amend it if the limited procedure is applicable for the amendment (e.g. in case of unforeseeable events or if only one provider/supplier is in the position to provide the required goods/services, see para. 3 above), and/or (iv) to execute tendered and awarded amendments (e.g. options and alternatives).

Amendments are non-substantial (and, therefore, admissible, see (ii) above) if, for instance, they only favour the contracting authority (e.g. additional discounts or improved products/services offered by the bidder), or if it is sufficiently unlikely that a competitor of the bidder would have submitted a more favourable bid, if the competitor had known of the amendments in advance/prior to submitting its offer. 

12. Is it mandatory or voluntary to use e-procurement or e-signatures?

The contracting authority may decide whether submissions should be submitted in traditional paper form or electronically. Electronic submission is permitted only if explicitly stated in the invitation to tender or the tender documents, and if the contracting authority's specified requirements for electronic submission are met (Art. 34 and 36 let. e FAPP/IAPP). The contracting authority may also request in the invitation to tender or the tender documents that submissions be made in electronic form only.

If the procurement is conducted electronically (on a mandatory or voluntary basis), the contracting authority is responsible for specifying any authentication and encryption requirements for electronic submissions in the tender documents. In doing so, the contracting authority may request a qualified electronic signature or accept other methods of verifying the identity of the tenderer. If a qualified electronic signature is required, the tenderer must meet these specified requirements.