Bakom must reconsider award of contract for SRG online analysis
As part of the procurement process, the Federal Office of Communications (Bakom) must determine whether the University of Zurich’s bid to analyze SRG’s online offerings constitutes grounds for exclusion.
This was decided by the Federal Administrative Court in a public deliberation. The company Publikom from the canton of Zurich had also submitted a bid following the public invitation to tender for the contract in January 2015. However, the contract was awarded to the University of Zurich. In its appeal, the private company complained, among other things, that the University of Zurich had submitted a bid that did not cover its costs. This was only possible because the university was a public-law institution. The offer was therefore cross-subsidized. In its offer, the university had, for example, listed the services of the project manager in terms of the number of hours required. However, these were not invoiced. One of the federal administrative judges calculated in the public deliberation that this was an item of around 40'000 francs, assuming an hourly rate of 200 francs.
Close decision
By a vote of three to two, the Federal Administrative Court partially upheld Publicom's appeal and referred it back to Bakom. The latter must examine whether the University of Zurich should have been excluded from the award procedure on the grounds of a violation of procurement or economic constitutional law. Private bidders are allowed to bid below price in an award procedure. This is not prohibited in Switzerland, as was explained during the public consultation. With regard to a public law actor, however, the legal basis is less clear. The majority of the St. Gallen judges concluded on Wednesday that the principle of competitive neutrality of state action must be taken into account when a public-law entity participates in an award procedure.
First partial contract awarded
The service contract for the analysis of SRF's online offering was put out to tender by Bakom for the 2015 calendar year. The contract also includes an option for the years 2016 to 2018. Because the analysis will examine whether SRG's online offering complies with the license, the Federal Administrative Court has allowed the contract for 2015 - as determined by Bakom - to be awarded to the University of Zurich. Depending on the outcome of the legal proceedings, the option for the years 2016 to 2018 is still to be awarded. The Federal Administrative Court's ruling can still be appealed to the Federal Supreme Court. (SDA)
