«Green Public Procurement» / Revision of Public Procurement Law

Objectives and Purpose of the Total Revision: Harmonisation and Sustainability

1. Introduction

Public procurement law regulates an important segment of the Swiss economy. It is based on the WTO Agreement on Government Procurement (GPA), which is implemented at federal level by the Federal Act on Government Procurement and the associated ordinance, and by the cantons by the Intercantonal Agreement on Government Procurement, as well as in the bilateral agreement with the EU on certain aspects of government procurement. Due to the revision of the GPA, which was concluded in 2012, adjustments in national law are necessary. At the same time, the procurement regulations of the federal government and the cantons are to be aligned as far as possible and appropriate.

2. Political Process

On 21 June 2019, the National Council and the Council of States unanimously approved the total revision of the Federal Law on Public Procurement (FLPP; SR 172.056.1). During several sessions, the Federal Assembly debated the draft in detail and finally settled their differences. At the same time, Parliament also unanimously adopted the revised WTO Agreement on Government Procurement (GPA 2012; SR 0.632.231.422). At its meeting on 12 February 2020, the Federal Council adopted the revised Ordinance on Public Procurement (OPP; SR 172.056.11). Currently, the implementation instruments are being developed. The two revised decrees will enter into force on 1 January 2021.

3. Objectives and Purpose of the Total Revision: Harmonisation and Sustainability

In addition to the implementation of the GPA 2012 within the BöB, one of the main objectives was to harmonise the procurement regulations of the federal government and the cantons as far as possible and appropriate. This has been a concern of the business community for years, as the current heterogeneous legal situation leads to unnecessary legal uncertainties and costly procedures. Since 2012, the federal government and the cantons have been working together in a working group with equal representation to prepare the revision texts for the federal law and the new Intercantonal Agreement on Public Procurement (IAPP).

With a clear statement of commitment to the federal government's proposal, the Federal Assembly also approved the joint project of the federal government and the cantons. Now that the cantons have also unanimously approved the IVöB at the special plenary session on 15 November 2019, the focus is now on the implementation work. In doing so, great importance is attached to cooperation and coordination with the other federal levels in order to continue the harmonisation efforts also with regard to implementation. The procurement regulations harmonised throughout Switzerland will increase legal certainty and user-friendliness, from which companies, especially SMEs, will benefit.

Great importance is also given to the implementation of the paradigm shift in public procurement towards more sustainability and quality competition as defined by the Federal Parliament.

4. Green Public Procurement

The new sustainability principle is set out in the purpose article art. 2a BöB and aims to ensure the economic and economically, ecologically and socially sustainable use of public funds. Ecological procurement (also known as "Green Public Procurement") enables the environmental balance of a procurement transaction to be considered. In the revised procurement law, ecological criteria have a high priority. The new purpose article puts the ecologically and socially sustainable use of public funds first, even before the previous principles such as transparency, competition, economic efficiency and equal treatment.

What does green procurement law mean in concrete terms? Sustainability can be taken into account in both technical specifications and award criteria. The contracting authority can newly provide technical specifications for the conservation of natural resources or the protection of the environment (art. 30 para.4 BöB), whereby the WTO/GAP non-discrimination rules must be respected. The principal will examine the tenders on the basis of performance-related award criteria. In addition to price and quality of performance, it takes into account criteria such as expediency, deadlines, technical merit, cost-effectiveness, aesthetics, sustainability (Art. 29 BöB).

The embodiment of the principle of sustainability underlines the fact that the procurement office, in order to evaluate the best offer, must not be guided solely by price, but has a wide discretion in the choice and evaluation of the award criteria. Ecological sustainability is thereby enshrined in law as a quality feature of a product or service. The Federal Council approved the Federal Administration's procurement strategy at its meeting on 28 October 2020. The focus for the strategy period 2021 to 2030 is on the implementation of the completely revised public procurement law. In the future, federal procurement should increasingly focus on sustainability considerations, quality competition and innovation. Procurement and demand units must take sustainability aspects into account throughout the entire procurement process. As a rule, they formulate suitable sustainability-oriented specifications, suitability and award criteria that apply to the respective procurement object.

The federal government has created a specialist unit for ecological public procurement within the Federal Office for the Environment (FOEN). The task of the agency is to make a concrete contribution to sustainable procurement and to support those responsible for public procurement at federal, cantonal and municipal level (e.g. procurement agencies, supervisory authorities). However, the agency does not carry out ecological product clarifications for procurement agencies or make product recommendations. It does, nevertheless, provide information and contacts on sustainable procurement and is represented in numerous bodies/organisations (e.g. OECD Steering Group on Greener Public Purchasing GPP; IGöB; BKB).

Public procurement law regulates an important segment of the Swiss economy. In 2018, the central federal administration alone procured construction work, goods and services worth CHF 5.55 billion. The revised WTO agreement expands the market access potential by around 80 to 100 billion US dollars per year. Green procurement can therefore have a sustainable Impact.

November 2020 | Authors: Dr. Martin Eckert, Karl Fässler

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