Failure threatens
In mid-February, the Federal Council adopted the dispatch on the revised procurement law. The demands of the construction industry received little attention in it. Instead, the Federal Government's attempt to remove the new procurement law from the principle of publicity was strongly criticised.
The GATT/WTO Agreement on Government Procurement (GPA) has also applied to Switzerland since 1996. Since then, public procurement law has developed into a legal discipline in its own right. For the administrative authorities, the new law meant a restriction of their scope of action. And politics was challenged because it had to ensure market opening and effective legal protection for the implementation of the GPA. For many, public procurement is too complicated and fragmented, and the award criteria are often incorrect and non-transparent. In addition, procurement law is regulated separately for the Confederation and the cantons. As early as 2008, an attempt to standardise Swiss procurement law failed due to resistance from the cantons.
Public procurement amounted to a good CHF 40 billion in 2016, with the Confederation accounting for CHF 5.6 billion and the cantons and municipalities for CHF 34.4 billion. The Confederation's share amounted to CHF 5.6 billion, and that of the cantons and communes to CHF 34.4 billion. francs. These 40 bn. Of this, up to CHF 20 % was spent on intellectual services, which means that they are of great importance to the national economy.
Necessary revision
The revised WTO-GPA agreement came into force in 2012 and inevitably requires an amendment to the Federal Law on Public Procurement (Bundesgesetz über das öf-fentliches Beschaffungswesen, BöB). As part of this revision, the Confederation and the cantons are attempting to revise the procurement law. The consultation period for the revised SOGC ran from 1 April to 1 July 2015, and on 15 February 2017 the Federal Council adopted its message on the subject. On page 27, under section 1.3 Results of the consultation procedure, subtitle 'Further feedback', it states: "Numerous business and industry associations complain that too little account is taken of complex procurements and that the price criterion is generally given too much weight. With the exception of the transfer of the flexible instrument of dialogue from the ordinance level to the law and the prohibition of so-called bidding rounds, not a single demand of the construction associations was taken into account.
One day after the announcement of the adoption of the BoP message, the Federal Data Protection Commissioner went public with the following message: "Publicity principle: procurement must remain transparent". Adrian Lobsinger criticises the fact that the Federal Council wants to exclude all documents in connection with federal procurement procedures from the scope of the Law on Public Access. The declared transparency objective of the revised BoER would be reversed by this undermining of the Public Procurement Act. "Especially in the particularly sensitive area of procurement, it is essential to maintain the unrestricted application of the Public Procurement Act," affirms data protection expert Adrian Lobsinger.
Transparency is to be undermined
In a commentary in the Tages-Anzeiger, Christian Brönnimann comments on the plan to declare procurement a secret matter, with the title: 'Trust at risk', that this week the golden smoke petarde goes to the Federal Council. The Federal Council is talking about the new procurement law being geared towards transparency from the outset, while at the same time smuggling a passage into the law that generally exempts all procurement documents from the principle of public access. "The citizen rightly feels he has been taken for a ride," writes the TA commentator. It is only thanks to the principle of public access that major procurement scandals have repeatedly come to light, such as the corruption affair in the State Secretariat for Economic Affairs SECO. And: With this, the fight for transparency in the administration has reached a new level of escalation. Until now, a number of offices have tried to fend off unwelcome requests for access by charging high fees. And now the Federal Council wants to move the most corruption-prone area completely into the darkroom.
Everything Federal Councillor Ueli Maurer is currently doing is going wrong. A moment ago, the Finance Minister was defiantly trying to explain his defeat in the vote on the Corporate Tax Reform III, and now the next crisis is following. The new anti-transparency article of the Federal Department of Finance in the new Federal Tax Code has been badly received outside the Federal Council. The media, politicians of all parties and even the trade association do not think much of Maurer's secret policy. "We take a very critical view," says Hans-Ulrich Bigler, director of the trade association. Alfred Heer, President of the National Council's Business Audit Committee (GPK), is also critical of the Federal Council's proposals on procurement law. He does not believe in declaring documents a secret matter. "A lot of things go wrong with procurement," says the SVP National Councillor from Zurich. The secrecy article in the finance minister's new procurement law is being ruffled from left to right and is unlikely to survive parliamentary debate.
Much is controversial
A not uncontroversial deal was envisaged for two main differences to the new BoeB. The cantons will now introduce bid negotiations, as the Confederation already does. In return, the Confederation extends its legal protection. This means that a disadvantaged company can now lodge an appeal in more cases. At present, this is only possible in the case of contracts awarded by the Confederation for supplies and services worth more than CHF 230,000 and for buildings worth more than CHF 8.7 million. However, the Confederation is finding it extremely difficult to honour its part of the deal. In the approved draft law, a court should only be able to determine whether the award was illegal. In the event of an affirmative decision, however, it cannot annul such surcharges. Another controversial issue is the question of the bias of persons involved in tender procedures. Today, the appearance of bias is sufficient - now it would have to be proven in court that a person is actually biased. Martin Beyeler, professor of construction law at the University of Fribourg, comments: "Instead of creating a simple exception, the Federal Council is throwing the baby out with the bathwater.
In an opinion piece, Flavio Casanova, former president of usic and CEO of a large engineering company, discusses whether public procurement is not endangering the Swiss engineering culture. It is undisputed that our country is facing major challenges: The infrastructure must be expanded and renovated. And there are also important questions to be asked about energy and energy strategy. Casanova rightly notes that the engineering profession has become less attractive in recent decades and that the building culture and the innovative and performance behaviour of engineering and planning offices have undergone an unfavourable change. He underlines this with the following three theses: 1. from high quality to mediocrity, 2. from innovation to demotivation and 3. from diversity to one-sidedness. He calls for a return to a good engineering culture: "To sum up, quality, innovation and versatility have been pushed aside by low-price politics and demotivating contracting logic. In the short term, such a philosophy may seem profitable. In the long term, however, society has to bear the expensive economic consequences."
