WORLD TRADE
ORGANIZATIONGPA/33
12 January 2000
(00-0099)
Committee on Government Procurement Original:  English
REVIEW OF NATIONAL IMPLEMENTING LEGISLATION
Switzerland
The present document reproduces the questions put to the delegation of Switzerland, the
responses given and the comments made during the review of national implementing legislation at the
Committee's meetings of 23 February and 5 October 1999.1   Switzerland's notification of its national
implementing legislation in accordance with the Committee decision in GPA/1/Add.1 has been
circulated in documents GPA/15, dated 30 July 1997, and GPA/15/Add.1, dated 15 September 1999.
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REPLIES TO THE QUESTIONS FROM CANADA;  THE EUROPEAN COMMUNITY;
HONG KONG, CHINA;  AND THE UNITED STATES
I. TENDERING PROCEDURES
Question from Canada
On page 4 of its Notification of National Im plementing Legislation (GPA/15) Switzerland
notes that its federal legislation provides for:
“... selective or restricted  tender procedures:  upon public invitation all interested
suppliers may submit an application for participation.  Participation is limited to a
certain number of selected suppliers (at least 3), and these suppliers are invited to
submit a tender; … ."
On page 9 of the same document, in paragraph 9, Switzerland describes the procedures for adding
additional suppliers to a permanent list of suppliers and notes:
“... Suppliers and service providers which are not yet on the list have to be included
in the procurement procedure, if the pr ocurement is not being delayed by their
inclusion in the list.”
Would Switzerland please explain how additional s uppliers are accommodated when the procurement
has been limited to a pre-set number of selected suppliers after the pre-set number has been invited to
submit a tender?
The first text is misleading and should read: "... selective or restricted procedures:  ...
Participation may be limited ...".  This means that in  a restricted procedure, the tendering entity may
decide, in order to ensure that the tender procedure is executed efficiently, to limit the number of
participants to a minimum of three.
                                                     
1 The minutes of these meetings have been circulated in documents GPA/M/11 and 12.GPA/33
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The procedure referred to on page 8 is different and refers to the establishment of a suppliers'
list.  In such a case, if a tendering entity plans to  use such a list to invite tender's submissions, new
applicants can be included provided their clearance and inscription in the list can take place without
delaying the procedure.
Question from Hong Kong, China
Whether the entities, in Switzerland, covered  by the GPA have in place a system for
qualification of suppliers and if so, what is the deadline for suppliers that are not yet qualified to
obtain the qualification in order to be considered in a particular tender?
According to our information, there are only very few entities covered by the GPA having in
place a system for qualification of suppliers up to now.  Therefore, limited experience exists as to the
functioning and use of such a system.  With regard to a precise deadline for suppliers not yet qualified
to obtain the qualification in a particular tender procedure, no exact time-limit is foreseen in Swiss
procurement law.  In principle, suppliers and service providers by law have the possibility to ask forinclusion in such a list at any time, provided this doesn't cause unreasonable procedural delays.
Question from the United States
The response in Switzerland's submittal  that addresses the issue of negotiation states that the
Inter-cantonal Agreement on Public Procurement does not foresee this possibility.  Can this response
be understood to mean that negotiation does not take place at the cantonal level?  If negotiation does
take place at the cantonal level, under what conditions?
At the federal level, the possibility of negotiation exists.  However, at the cantonal level, it is
correct that such a possibility does not exist.
II. PUBLICATION
Question from the European Community
According to Article IX of the GPA, notices of proposed procurement shall be published in
the appropriate publication listed in Appendix II.  To what extent does Switzerland consider that the
information provided by Appendix II in regard to Switzerland respects all of the transparency
conditions laid down in Article IX, particularly in  view of the fact that none of the 26 cantonal
publications are mentioned?
It was considered necessary to name each of the official publications for the 26 Cantons in
Appendix II.  The Swiss Official Trade Gazette is the publication used for notices of intended
procurement of entities of the central government in Annex 1 of Appendix I.  Publication of notices ofintended procurement of entities under Annex 2 of Appendix I - entities at the sub-central level - can
be found in the official publication of each of the 26 Cantons.
A list of the addresses of the 26 cantonal publications is contained in the Annex to this
document.  As there is only one such official publication in each Canton, it was not seen as necessary
to indicate the title of each publication.  However, in order to render the Appendices of the GPA moretransparent, Switzerland is ready to add the names of the 26 official cantonal publications to
Appendix II of the GPA as soon as all of the othe r signatories of the GPA having sub-federal entities
are ready to do so, and supports such a decision to be taken by the GPA Committee.GPA/33
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Moreover, increasingly, summaries of cantonal notices which are contained in the relevant
cantonal gazettes are published in the Swiss Official Trade Gazette which is available on the Internet.
In the future, Switzerland foresees that the Swiss Official Trade Gazette will become more and more
important, particularly in relation to publication on a municipal level.  For the time being, the cantonal
gazettes are not on the Internet.  While some cantons are seeking to do this, it may take some time
more before this is achieved.
III. BID CHALLENGE PROCEDURES
Questions from United States
The response in Switzerland's submittal under the section "Procedures for hearing and
reviewing complaints/appeals" states that at the cantonal level, the cantonal authority to which
complaints against the award of a contract can be lodged is in most cases an administrative court.
Please list the canton and describe the cantonal authority to which complaints can be lodged forthose cantons that utilise an authority other than an administrative court.
The relevant cantons are Solothurn and Schaffhausen.  In the Canton of Solothurn, the
cantonal authority having jurisdiction as to the complaints against the award of a contract is the
"Cantonal Valuation Commission" (Kantonale Schätzungskommission).  This commission is an
independent judicial body.  In the Canton of Schaffhausen, the respective authority is the Court of
Appeal (Obergericht).
The response in Switzerland's submittal notes that there are no fixed time-limits for the
different stages of the challenge process.  Can this be understood to mean that there is no specifictime requirement to initia te challenge procedures and notify the procuring entity from the time when
the basis of the complaint is known or reasonably should have been known, as stated in Article XX:5
of the GPA?
No, at the federal level, the time-limit to initiate challenge procedures is 20 days from the
time when the basis of the complaint is known or reasonably should have been known.  At the
cantonal level, the respective time-limit is 10 days.  Since, in general, the published invitation to
tender or the published award of contract announ cement form the basis of the complaint, the
respective time-limit has to be calculated from the day of publication in the official gazette.  As to the
referred passage in the Swiss notification cited by the United States, it is the different stages of the
challenge procedure after a complaint has been initia ted that, in general, are not subject to a specific
time-limit, neither at the federal nor at the cantonal level.
The last page of Switzerland's notification in GPA/15 states that the Federal Council has
established an independent authority, "whose services are available for suppliers and service
providers from countries members to the GPA, if they face systemic difficulties with the way the Swiss
authorities implement the GPA".  Please provide information about this body, including the scope of
its authority and its operational procedures, and where suppliers wishing to avail themselves of thisbody can obtain additional information.
The concerned independent authority is th e "Government Procurement Commission Swiss
Confederation-Cantons".  It is based on decisions of the respective federal and cantonal authorities
and is composed of representatives from Cantons and from the Confederation.  Its aim basically is toadvise on and support the coherent implementation of the international obligations of Switzerland in
the domain of public procurement on all levels.  The Commission has advisory competence and can
mediate in specific cases.  The main task of this body is the exchange of information and opinions
between representatives of the federal authorities and the cantonal authorities concerning the
implementation of the WTO Agreement on Government Procurement and to discuss specificquestions touching upon the application and surveillance of these provisions.  Moreover, theGPA/33
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Commission addresses individual cases as well, namely difficulties arising from the application of the
procurement rules in practice, raised by suppliers, authorities or members of the Commission.  The
efforts taken to urge the relevant entities to act according to the respective legal framework have
turned out to be quite effective.
It has been announced that in December 1998, Switzerland and the European Community
reached a bilateral agreement which included an agreement on public procurement.  Reportedly,
pursuant to the agreement, Switzerland will create an independent monitoring body and make
provision for appeals on the lines of EU procedur es.  Please provide information on the expected
impact and/or effects of this agreement on Switzer land's implementation of the WTO GPA.  For
example, will this agreement create an independent m onitoring body that is open to foreign entities?
And are the appeals procedures' described in Switzerland's notification expected to change for
GPA-covered contracts?
The implementation of the bilateral agreement w ith the EU is being discussed on the federal
and the cantonal level.  Regarding the specific question of the monitoring body, the relevant
authorities are evaluating whether it would be appropriate if the Commission mentioned in the
previous answer would be entrusted with these task s.  As to the impact of this agreement on the
existing appeals procedures, no changes of the mechanism according to Article XX of the Agreement
on Government Procurement are to be expected.
Question from Canada
On page 11, in paragraph 14(vii), Switzerland notes that the costs of bid challenge are borne
by the unsuccessful party.  Would Switzerland please clarify whether the government, if it were the
unsuccessful party, would be responsible for costs?
Costs have in general to be borne by the unsuccessful party.  The procedural costs of purely
administrative nature have to be distinguished from other costs such as party compensation.  In case
the government is the unsuccessful party, no procedural costs are charged in general.  With a view to
a party's expenditures in the conduct of a challenge procedure, the Federal Appeals Commission may
decide for compensation of necessary and reasonably high costs arisen from the challenge.  Such
compensation in favour of the successful party has to be borne by the unsuccessful party, no matter ifit is the government or a bidder.GPA/33
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ANNEX
Addresses of the Cantonal Official Gazettes
(Official publication organs for cantonal tenders)
Canton Name and Address Tel./Fax (+41)
Aargau Amtsblatt des Kantons Aargau
Verlag Zofinger Tagblatt AG
Henzmanristrasse 18, Postfach
4800 ZofingenTel:  062 745 93 55
Fax:  062 745 93 59
Appenzell A.Rh. Amtsblatt des Kantons Appenzell A.Rh.
Regierungsgebäude
9102 HerisauTel:  071 351 31 31
Fax:  071 325 51 26
Appenzell I.Rh. Appenzeller Volksfreund
Engelgasse 3, Postfach
9050 AppenzellTel:  071 787 52 74
Fax:  071 787 37 53
Basel-Landschaft Amtsblatt des Kantons Basel-Landschaft
Postfach
4410 LiestalTel:  061 925 50 26
Fax:  061 925 69 65
Basel-Stadt Kantonsblatt Basel-Stadt
Rathaus
Marktplatz 9
4001 BaselTel:  061 272 55 23
Fax:  061 272 55 73
Bern Amtsblatt des Kantons Bern
Postfach 133
3000 Bern 6Tel:  031 368 18 18
Fax:  031 351 27 07
Fribourg/Freiburg Feuille officielle du canton de Fribourg/
Amtsblatt des Kantons Freiburg
Rue des Chanoines 17
1700 FribourgTél.:  026 426 44 96
Fax:  026 426 44 60
Genève Feuille d'avis officielle de la République et
Canton de Genève
Rue de l'Hôtel de Ville 2
1204 GenèveTél:  021 319 22 06
Fax:  021 312 08 92
Glarus Amtsblatt des Kantons Glarus (in- Glarner
Nachrichten)
Postfach 366
8750 GlarusTel:  055 646 69 64
Fax:  055 646 60 99
Graubünden Amtsblatt des Kantons Graubünden
7002 ChurTel:  081 258 33 33
Fax:  081 258 33 34GPA/33
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Canton Name and Address Tel./Fax (+41)
Jura Journal officiel de la République et Canton
du JuraCase postale 135
2900 PorrentruyTél:  066 66 10 13
Fax:  066 66 51 04
Luzern Luzerner Kantonsblatt
Staatskanzlei
Bahnhofstrasse 15
6002 LuzernTel:  041 228 50 25
Fax:  041 228 67 83
Neuchâtel Feuille officielle de la République et Canton
de Neuchâtel
Château
2001 Neuchâtel 1Tél:  038 39 40 01
Fax:  038 39 60 71
Nidwalden Amtsbiatt Kanton Nidwalden
Rathaus
6370 StansTel:  041 618 79 02
Fax:  041 618 79 11
Obwalden Amtsblatt des Kantons Obwalden
6060 SarnenTel:  041 660 59 70
Fax:  041 660 59 54
Solothurn Amtsblatt des Kantons Solothurn
Rathaus
4509 SolothurnTel:  032 627 20 21
Fax:  032 627 29 94
Schaffhausen Amtsblatt für den Kanton Schaffhausen
Rathaus
8201 SchaffhausenTel:  052 632 73 64
Fax:  052 632 72 00
Schwyz Amtsblatt des Kantons Schwyz
6430 SchwyzTel:  041 819 11 24
Fax:  041 819 26 19
St.  Gallen Amtsblatt des Kantons St. Gallen
Staatskanzlei
9001 St. GallenTel:  071 229 32 59
Fax:  071 229 35 45
Thurgau Amtsblatt des Kantons Thurgau
Regierungsgebäude
8500 FrauenfeldTel:  052 723 55 11
Fax:  052 721 54 04
Ticino Foglio Uff iciale della Repubblica et
Cantone del Ticino
Palazzo governativo
6500 BellinzonaTel:  091 804 43 49
Fax:  091 804 44 01
Uri Amtsblatt des Kantons Uri
Gitschenstrasse 9
6460 AltdorfTel:  044 874 16 16
Fax:  044 874 16 36GPA/33
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Canton Name and Address Tel./Fax (+41)
Valais/Wallis Bulletin officiel du Canton du Valais/
Amtsblatt des Kantons WallisCase postale/Postfach 543
1950 Sion/Sitten 1Tél:  027 29 77 10
Fax:  027 29 77 11
Vaud Feuille des avis officiels du Canton de Vaud
Château cantonal
1014 LausanneTél:  021 316 40 40
Fax:  021 316 40 48
Zug Amtsblatt des Kantons Zug
Poststrasse 18Postfach 30
6301 ZugTel:  041 729 77 77
Fax:  041 729 77 45
Zürich Amtsbiatt des Kantons Zürich
Postfach
8157 DielsdorfTel:  01 854 82 82
Fax:  01 854 82 62
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