1. E S C L E uropean Society of Construction Law How to challenge a public contract award – and what about damages? The Swiss regulations www.unifr.ch/baurecht Martin Beyeler Dr. iur., Fürsprecher (Attorney-at-law / Zurich) Institute for Swiss and International Construction Law University of Freiburg Switzerland E S C L E uropean Society of Construction Law

2. E S C L E uropean Society of Construction Law Overview 1.Challenging Contract Awards under Swiss Law a)Complaint procedure b)Court‘s decision 2.Challenging Contracts under Swiss Law? 3.Observation on the Cases

3. E S C L E uropean Society of Construction Law Introduction The Microsoft Case (still pending) Conclusion of contract (Vista / Office 2007 / Support) Publication of direct award (after conclusion) OSS firms challenge the award Court: prohibition of any procurement which is not absolutely necessary Court later: prohibition reversed, but reservation of further measures

4. E S C L E uropean Society of Construction Law Challenging Awards I The Legal Framework EC Directives not applicable GPA / Bilateral Agreement GPA XX Provisional measures Annulment / Compensation

5. E S C L E uropean Society of Construction Law Challenging Awards II From the award to the contract (Award Decision) Award Publication 10 / 20 days Conclusion of Contract Execution

6. E S C L E uropean Society of Construction Law Standstill Challenging Awards III Annulment of Award Award Publication 10 / 20 days Complaint! Provisional measures? No! Conclusion of Contract Annulment of Award Yes! Standstill Confirmation of Award Standstill

7. E S C L E uropean Society of Construction Law Challenging Awards IV Declaration of unlawfulness Provisional measures? No! Conclusion of Contract Standstill Execution Complaint founded? Yes! No! Declaration of unlawfulness Action for damages

8. E S C L E uropean Society of Construction Law Challenging Awards V „Effective Procedures“ (GPA XX:2) ‚Most important of all decisions‘ Prognosis / Balance of interests Some courts write more, some less 70-90 % of all cases: no provisional measures No provisional measures: 95 % of withdrawals effective relief urgency of conclusion

9. E S C L E uropean Society of Construction Law Challenging Contracts? Different Situations What if the contract is concluded...... too early (during standstill)?... without an award publication?... with wrong contents or terms?... for a too long period?... with the wrong partner?

10. E S C L E uropean Society of Construction Law ? Challenging Contracts? Various Solutions for one problem No consequences, no sanctions. – (No problem?) Per se-nullity or per se-ineffectiveness of contract. Contracting Authority is not entiteled to conclude. Courts can give orders with regard to the contract. Courts can annul the contract. vs.

11. E S C L E uropean Society of Construction Law Observations on Case 1 The Floors Award to the cheapest tender: standardized goods? Two prices, but only one blank space: formalism. No surface indicated: bidder questions. Price confirmation by Tenderer 2: equal treatment? Loss-reduction commitment applies! No compensation for loss of profit!

12. E S C L E uropean Society of Construction Law Observations on Case 2 The Waterfront Rules on reservations Winter measures Always higher costs than offered? If minor: legal award? If major: illegal award! (no loss of profit)

13. E S C L E uropean Society of Construction Law Observations on Case 3 The Carpets ‚Overall estimate of the tender‘ Rules on forfeiture of reprovals Minor disregard of specifications Alternative tenders Too few employees? Complaint unfounded

14. E S C L E uropean Society of Construction Law Observations on Case 4 The Cleaning ‚Unreasonably low bid‘ Rules on annulment Challenging an annulment Legal annulment Legal, but mala fide annulment: only damages Abusive annulment: correction (if possible)

15. E S C L E uropean Society of Construction Law The End Thank you very much for your attention! martin.beyeler@sbh-law.ch