procurement guideline for fdfa contractors (1/2) · procurement guideline for fdfa contractors,...

Federal Department of Foreign Affairs FDFA

General Secretariat

Competence Centre for Contracts and Procurement

Procurement guideline for FDFA contractors (1/2) This guideline is intended for contractors for the Federal Department of Foreign Affairs (FDFA) who in carrying out their mandate are required to award mandates to sub-contractors using FDFA resources. Part 4 of the budget (SOR budget) for mandates for project implementation awarded by the Swiss Agency for Development and Cooperation (SDC) is to be allocated as detailed below. Parts 1-3 of the budget (SOR budget) included in the contractor's bid were already awarded in accordance with the above procedure. This guideline therefore does not apply to subcontracts already awarded in parts 1-3.

Choice of procedure In choosing the appropriate award procedure (direct award, invitation procedure, or open or selective tendering procedures), there are a number of things to consider, including:

1 WHO: Is the contracting authority or contractor subject to federal procurement law? 2 DEFINITION: Is this a public procurement transaction? 3 WHAT: Is the procurement object subject to federal procurement law? 4 HOW MUCH: What is the value of the mandate? 5 EXCEPTIONS: Are there any exceptions to the obligation to tender? 6 PROCEDURE: Direct award procedure, invitation procedure, tendering procedure?

Procurement guideline for FDFA contractors, Version 1.1 (April 2016) of 8

Swiss procurement law applicable

1 WHO: Is the contracting authority or contractor subject to federal procurement law?

The Federal Administration is subject to national and international statutory provisions on public procurement. As part of the Federal Administration, the Federal Department of Foreign Affairs (FDFA) and its directorates must therefore respect the statutory provisions1. If a contractor carries out a procurement for the FDFA (contracting authority), Swiss procurement law stipulates that the same standards for procurement law apply as those that apply to the FDFA itself.

1 Federal Act on Public Procurement (PPA; SR 172.056.1) and Federal Ordinance on Public Procurement (PPO; SR 172.056.11).

Contractor / Project implementer

(Private)

FDFA / Contracting

authority

Sub-contractor (Private)


2 DEFINITION: Is this a public procurement transaction?

A public procurement transaction is a transaction that involves… … a (private) contractor/project implementer engaging a (private) sub-contractor and using public funds to purchase a service, good or construction in the fulfilment of their mandate. A contribution is not considered to be a procurement (see section 2.2) because an exchange of services as described above does not take place.

2.1 Mandate

The sub-contractor undertakes to carry out a specific mandate (project/activity) of the FDFA. The contractor undertakes to compensate in full the sub-contractor for the services rendered and expenses incurred in accordance with the budget.

- FDFA project - FDFA funds 100% of the budget (fees and expenses) - Intellectual property: FDFA - VAT in CH: possible - Applicable procurement legislation (Federal Act on Public Procurement (PPA) / Ordinance on Public

Procurement (PPO))

Contractor / Project implementer

(Private)

Sub-contractor (Private)

FDFA project Implementation by

sub-contractors Mandate to be carried out (service provided in exchange for payment of a fee,

expenses, etc.)


2.2 Contribution

The FDFA undertakes to fund a specific part of the sub-contractors' activity/project. The sub-contractor undertakes to carry out the activity/project by making an appropriate contribution or having a third party do so.

- Sub-contractor's project - The FDFA only funds a part of the budget - Intellectual property: Sub-contractor - No VAT in CH - Subject to the Subsidies Act not to the Federal Act on Public Procurement

3 WHAT:

Is the procurement object subject to federal procurement law? The act specifies three different procurement objects: services, goods and construction mandates.

3.1 Service mandate

A service provided by a bidder as part of an FDFA mandate is known as a service mandate. The type of service determines whether the procurement transaction involves a contract subject to the right of appeal (WTO2/non-WTO).

3.2 Goods mandate

Moveable goods are provided under a goods mandate.

3.3 Construction mandate

Construction mandates provide civil engineering services.

2 World Trade Organization (WTO).

FDFA Sub-contractor's project

Contribution

(financial involvement)


4 HOW MUCH: What is the value of the mandate?

4.1 Threshold values

The following threshold values are applicable for specific procedures in accordance with the relevant legislation:

If goods are procured along with services, the threshold value for procuring goods applies. The different procurement procedures are described in more detail in section 6. Increasing competition/avoiding conflicts of interest Even below the legally defined threshold values, it is possible to choose a procedure that fosters more competitive bidding. The contractor is responsible for taking the necessary steps to raise the overall level of competition In the case of local procurement (invitation procedure, direct award) SDC cooperation offices must convert the threshold values listed above into the local currency and adapt them to the local circumstances. This lowers the threshold values, which creates more competition and helps lower the risk of conflicts of interest. Better competition significantly helps to reduce instances of corruption.

4.2 Mandate value

Calculating the mandate value The total value of the service (excluding VAT) is the basis for calculating the mandate value. The mandate value must be calculated carefully, taking into account any follow-up mandates. It must not be split up to side-step the regulatory requirements. Services connected in material and legal terms In principle, all services which are closely related in material and legal terms must be included in the mandate value.


The following questions will make it easier to assess which services are related in legal and material terms: - Is it reasonable to procure these services together? - Do these services serve the same purpose? - Are these services to be provided by the same bidder? - Should we avoid dividing responsibilities?

Fixed term/unlimited duration The total value is the determining value for fixed term contracts. The monthly value multiplied by 48 is the determining value for unlimited contracts. Maximum contract length Contracts for recurring services may be concluded for a maximum of five years. A longer contract period is possible in justified cases. The contract period must not exceed the project period.

5 EXCEPTIONS: Are there any exceptions to the obligation to tender?

Deviations from the prescribed competitive bidding procedures are only permitted in specific cases provided for by the relevant legal provisions. Check whether there are any exceptions. The statutory exceptions are set out in Art. 3 PPA and Art 13 and 36 PPO. Examples:

- Mandates that are awarded on the basis of a valid international treaty between Switzerland and a partner country concerning a joint project. For local procurements or other exceptional procedures, a corresponding regulation in the project agreement must be mentioned and defined (rules of the partner country, the implementing organisation or specially defined rules), which must be respected. For adjudications by discretionary procedure, the procuring authority must be explicitly mentioned in the project agreement.

- Only one suitable bidder on the market can be considered and there is no adequate alternative. - On account of unforeseeable events, the urgency of the procurement is such that it is impossible to

adopt an open or selective procedure. - Goods/services intended to replace, complete or supplement goods/services already supplied must be

acquired from the original bidder given that this is the only way of ensuring interchangeability with existing goods/services.

Obligation to provide justification Direct awards (and other exceptions to the legally prescribed procedure) of service procurements and construction mandates with a value of CHF 150,000 or above, and goods procurements with a value of CHF 50,000 or above are subject to the obligation to provide justification. In such cases the FDFA must be consulted.


6 PROCEDURE: Direct award procedure, invitation procedure, tendering procedure?

6.1 Direct award procedure

With the direct award procedure the contractor issues a mandate directly to a bidder (no competition). Procedure for dealing with a direct award below the legal threshold value

- Collect bids (It is advisable to collect bids to boost competition.) - Evaluate bids and award mandate to a bidder - Sign contract

Procedure for dealing with a direct award subject to the invitation or tendering procedure For mandates of service procurements and construction mandates with a value of CHF 150,000 or above, and goods procurements with a value of CHF 50,000 or above, the exception must be justified and the FDFA must be consulted (see section 5).

6.2 Invitation procedure

In the invitation procedure, the contractor decides which bidders are to be invited directly to submit offers without an invitation to tender. The contractor must collect at least three bids if possible. Dealing with an invitation procedure

- The contractor decides which bidders are to be invited directly to submit offers. With sub-contracts in Switzerland, at least one bidder must come from another linguistic region.

- Collect at least three bids, if possible - Evaluate bids - Award mandate - Sign contract

6.3 Tendering procedure (open or selective procedure)

An international tendering procedure is required for service mandates and goods mandates with a value of CHF 230,000 and above and construction mandates with a value of CHF 2,000,000 and above. There are two types of tendering procedures: the open procedure and the selective procedure. Open tendering procedure (= one-step procedure) The contractor publishes the planned mandate on www.simap.ch. The contractor sets up an account him/herself as "contracting authority" on www.simap.ch.

- Invitation to submit a bid (40-day time limit) - Any bidder may submit a bid - Decision on award of mandate - Publication of the awarding of the mandate (maximum 30-day time limit after the award decision, 20-

day appeal deadline if applicable) - For tenders subject to the right of appeal: wait until the appeal deadline has passed - Sign contract


Selective tendering procedure (= two-step procedure) Step 1: Invitation to submit expression of interest (EOI) on www.simap.ch.

- All bidders may submit an EOI. - Minimum deadline to submit a request to participate: 25 days. - Check suitability

Step 2: All suitable bidders are invited to submit a bid - Invite at least three bidders to submit a bid - Minimum deadline to submit a bid: 40 days - And so on…follow the same steps as the open procedure

Swiss Federal Department of Foreign Affairs FDFA

General Secretariat

Competence Centre for Contracts and Procurement

Procurement guideline for FDFA contrac-tors (2/2)1 Tendering procedure Open or selective procedure with publication on www.simap.ch

This document governs the practical implementation of a tendering procedure. The procedure com-prises the following stages:

1 PRELIMINARY ANALYSIS 2 PREPARATION 3 INVITATION TO TENDER 4 EVALUATION AND AWARDING THE MANDATE 5 CONTRACT

1 PRELIMINARY ANALYSIS

1.1 Tender with or without the right of appeal

Service mandates Whether an invitation to tender for a service mandate is published with or without right of appeal depends on the type of service. The list in Annex 1a of the Ordinance on Public Procurement2 conclusively stipulates which tendering procedures are subject to right of appeal. All other service mandates do not include the right of ap-peal. Goods mandates Goods mandates are in principle subject to the right of appeal3. Construction mandates Construction mandates with a value of CHF 8.7 million and above are subject to right of appeal.

1 In choosing the appropriate award procedure (direct award, invitation procedure, or open or selective tendering procedures), there are a number of things to consider that are dealt with in the first part of the Procurement guideline for FDFA Contractors: "Choice of procedure". 2 SR 172.056.11 3 Some military goods are excluded from this procedure.

http://www.simap.ch/

Procurement guideline for FDFA contractors, Version 1.1 (April 2016) Page 2 of 7

The following applies to all mandate types subject to the right of appeal - An appeal deadline of 20 days after the date the mandate is published on www.simap.ch (please note:

deadline suspended during court recesses).4 - Invitations to tender, awards and participant selection (only in selective, i.e. in two-step, tendering pro-

cedures, see section 1.3) can be contested if the tender is subject to the right of appeal. - Contracts are only concluded once the appeal deadline has expired and no appeal has been submit-

ted. - The court generally suspends the award decision if the appeal is likely to be successful (at least tem-

porarily once the appeal has been lodged).

1.2 Impartiality

People who award, process or can influence the content of mandates, must be impartial and thus have no close relationships with bidders or contractors. Contractors must immediately inform the FDFA in writing if they are involved in a procurement process in which they have such a close relationship. If a close relationship ex-ists the FDFA decides whether the person in question should withdraw from the procedure. Examples of particularly close relationships include close business connections (such as a customer relation-ship, a strategic partnership or a form of participation), partnerships (marriage, registered partnership or de facto union), a family relationship or affinity, an economically-dependent relationship or any other relationship of dependency, or relationship going back several years based on military service. The “Declaration of Impartiality” form (in DE, E, F, IT, ES) must be signed by everyone involved in the pro-curement process in good time.

1.3 Open or selective procedure

Open procedure The contractor publishes the planned mandate on www.simap.ch.

- Invitation to submit a bid (40-day time limit) - Any bidder may submit a bid - Decision on awarding the mandate - Publication of the award of the mandate

(maximum 30-day time limit after the award decision, 20-day appeal deadline if applicable) - For tenders subject to the right of appeal: wait until the appeal deadline has passed

- Sign contract Selective procedure (= two-step procedure) Step 1: Invitation to submit expression of interest (EOI) on www.simap.ch.

- All bidders may submit an EOI. - Minimum deadline to submit an EOI: 25 days - Check suitability

Step 2: All suitable bidders are invited to submit a bid

- Invite at least three bidders to submit a bid - Minimum deadline to submit a bid: 40 days - And so on…follow the same steps as the open procedure

4 Art. 22a APA (Administrative Procedure Act, SR 172.021)


https://www.eda.admin.ch/deza/en/home/partnerships-mandates/mandates-contributions/information-downloads/information-contractors.html



https://www.admin.ch/opc/en/classified-compilation/19680294/index.html


2 PREPARATION

2.1 Defining suitability and award criteria

The required suitability and award criteria as well as their order of precedence and weighting must be defined when the tender documents are prepared. The invitation to tender and tender documents must specify all crite-ria.

The criteria must not be changed during a tendering procedure.

2.1.1 Suitability criteria

Suitability criteria are usually mandatory criteria (YES/NO) that refer to the bidder. The offers are first checked against the suitability criteria and then against the award criteria. To ensure that the bidder can defi-nitely carry out the mandate in technical, financial and commercial terms, suitability criteria are defined and the required proof to meet these criteria is identified in the invitation to tender or tender documents. If the required proof is not furnished or the suitability criteria are not met, the bid is not evaluated further. The suitability criteria for a (two-stage) selective tendering procedure with restricted participation can include mandatory criteria (YES/NO) as well as assessable criteria. Market-restricting and discriminating criteria are not allowed.

2.1.2 Award criteria

Award criteria are evaluation criteria that relate to the offered product/service and determine the require-ments. The tender is awarded to the most economically advantageous offer. This is determined by considering various criteria, in particular deadline, quality, price, cost-effectiveness, operating costs, customer service, use-fulness of the service, sustainability, degree of innovation, specialist expertise, methodological efficiency, technical value, etc. The award criteria must be clearly defined, comprehensible, assessable, transparent, and given an appropriate weighting. Criteria that contradict the principle of equal treatment (e.g. place of residence, tax domicile) are in-admissible as award criteria. Assessing prices Price is always an award criterion. Giving price criteria too low a weighting contradicts the principle of cost-effectiveness. The lowest admissible weighting of price criteria is 20% (decision of the Federal Administrative Court). The invitation to tender must specify the weighting of the price and the applicable price-assessment method (formula for calculating the price).


2.2 Core service/optional services

The core service and optional services must be clearly specified and assessed in the tender documents Core service A core service is the service received from the bidder after the mandate has been awarded. Optional services Optional services are services that bidders sometimes provide if the need occurs in the future or if the scenario specified in the invitation to tender arises. The contractor can reserve the right in an invitation to tender to award optional services to the same bidder. He/she is obliged to specify the amount of services, the estimated date the services will be used, and the ap-plicable conditions. When evaluating bids he/she must include optional services when determining the value of the mandate and taking into account the probability of the services being used. The bidder has no enforceable claim to provide these optional services but must offer them at the same conditions as the core service.

2.3 Lots

The contractor can procure the service as a whole or in separate parts (lots). By dividing up the service, how-ever, the contractor may not circumvent the stipulated procedure or demonstrate any preference for individual bidders. The individual lots must be described in the invitation to tender (principle of transparency). If the contractor has divided a service into lots, bidders are free to choose whether to submit a bid for the en-tire service and/or for one or more lots. The contractor must indicate any deviations from this in the invitation to tender. If the contractor reserves the right to award a partial contract only to bidders who have submitted a bid for the entire project, or to request that the bidder works with third parties, this must be specified in the invitation to tender.

2.4 Variants

Variants are bids that make it possible to achieve the procurement objective in a different way to that stipulat-ed by the contractor (the ‘official proposal’). A variant’s content and service offered must differ from the official proposal. Bidders are free to submit a variant in addition to the official proposal. In justified exceptional cases, the contractor can limit or exclude this option in the invitation to tender. Any bidders wanting to submit a vari-ant must always submit an official proposal as well, otherwise their bid cannot be considered.


3 INVITATION TO TENDER

3.1 Publiction

All invitations to tender (open or selective procedure) are published on the electronic platform shared by the Confederation, cantons and communes www.simap.ch (Système d’information sur les marchés publics en Suisse [Swiss information platform on public procurement]). The contractor sets up an account him/herself as "contracting authority" on www.simap.ch. The contractor is responsible for publishing the invitation to tender. To set up a user account, contractors resident outside Switzerland must be able to show a contractual agree-ment with the FDFA (project implementation mandate). This is to be sent together with the applicable General Terms and Conditions (GTC) on demand by the SIMAP support office to: [email protected].

3.2 Obtaining documents

Once the invitation to tender has been published, bidders can download the additional documents (tender document, GTCs, bid form, etc.) directly from www.simap.ch.

3.3 Deadline for questions

Bidders have a set period of time to ask questions about the tender document and the invitation to tender in general.

Registered bidders are given access to the forum for the tender in question where they can ask questions anonymously within the period set in the tender documents.

4 EVALUATION AND AWARDING THE MANDATE

4.1 Evaluating the bids (open procedure)

Bids in open procedures are evaluated in three steps and must be clearly documented. Step 1: Checking compliance with the formal requirements The bidder must fully comply with the formal requirements specified in the tender documents; otherwise the bid will not be considered. The following is checked during this step:

- Deadline compliance - Completeness of bid - Compliance with formal requirements

Step 2: Checking compliance with the suitability criteria The suitability criteria specified in the tender documents must be completely fulfilled and proven without limit-ing or modifying the submission of the bid, otherwise the bid will not be considered Only those bidders and bids that fulfil all formal requirements and suitability criteria will be evaluated on the basis of the award criteria. All other bidders and bids will be excluded from the rest of the procedure. Step 3: Checking compliance with the award criteria Bids are evaluated on the basis of the award criteria and evaluation scale specified in the tender documents.

mailto:[email protected]



4.2 Evaluating expression of interest and bids (selective procedure)

As outlined in Section 1.3 Open or selective procedure, the evaluation of bids in the selective procedure is done in two stages and must be clearly documented.

1. Checking the submitted expressions of interest against the suitability criteria 2. Checking the submitted bids against the award criteria

Stage 1: Checking the submitted expressions of interest (EOI) against the suitability criteria Step 1: Checking compliance with formal requirements The EOI must fully comply with the formal requirements specified in the participant documents, otherwise the bid will not be considered. The following is checked during this step:

- Deadline compliance - Completeness of bid - Compliance with formal requirements

Step 2: Checking compliance with the suitability criteria The suitability criteria specified in the participant documents must be completely fulfilled and proven without limitation or modification, otherwise the EOI will not be considered. Only those bids that fulfil all formal requirements and the suitability criteria will be evaluated on the basis of the weighted suitability criteria. The remaining bids will be excluded from the rest of the procedure. Step 3: Checking compliance with the weighted suitability criteria The EOI are evaluated on the basis of the weighted suitability criteria specified in the participant documents as well as the evaluation scale. Step 4: Selecting participants (pre-qualification) The number of participants with the highest number of utility points specified in the participant documents will be invited to submit their bids (stage 2). Stage 2: Checking that the submitted bids comply with the award criteria Step 1: Checking compliance with the formal requirements Checking compliance with the formal requirements The bidder must fully comply with the formal requirements specified in the tender documents; otherwise the bid will not be considered. The following is checked during this step: - Deadline compliance - Completeness of bid - Compliance with formal requirements Only those bids that fulfil all formal requirements will be evaluated on the basis of the award criteria. The re-maining bids will be excluded from the rest of the procedure. Step 2: Checking compliance with the award criteria Bids are evaluated on the basis of the award criteria and evaluation scale specified in the tender documents. Prices are evaluated on the basis of the formula listed in the tender documents.


4.3 Awarding the mandate

The most economically advantageous bid is awarded the mandate. This is determined by considering various criteria (award criteria), in particular deadline, quality, price, structure/expertise, cost-effectiveness, operating costs, customer service, usefulness of the service, environmental compatibility and technical value.

4.4 Publication

All awards (open or selective procedure) are published on the electronic platform shared by the Confederation, cantons and communes, www.simap.ch (Système d’information sur les marchés publics en Suisse [Swiss in-formation platform on public procurement]). The contractor is responsible for publishing the award.

5 CONTRACT

5.1 Right of appeal and concluding the contract

With invitations to tender not subject to the right of appeal the contract can be concluded with the bidder once the award has been published. For invitations to tender subject to the right of appeal wait until the appeal deadline of 20 (calendar) days from the date of publication on SIMAP has expired before concluding the contract providing no appeal has been made. The appeal deadline is suspended while the court is in recess. The court generally suspends the award decision if the appeal is likely to be successful (at least temporarily once the appeal has been lodged). The contract with the bidder can only be concluded if financing has been guaranteed in advance (the credit proposal must be approved).


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