The following facts recently provided the Federal Court with the opportunity to depart from its controversial jurisprudence concerning the challenging of direct awards under Art. 21 para. 2 lit. c BöB / IVöB:
The Canton of Vaud had awarded a contract for the complete renewal of software for the Road Traffic Office and further cooperation between 2022 and 2034, with a volume of over 45 million Swiss francs, directly to the previous provider – initially without justification. Only upon inquiry from a competitor was the award justified by stating that a change was impossible for technical and economic reasons.
Following an appeal against the published award, the Cantonal Court annulled it and instructed the awarding authority to conduct a regular procurement procedure. The award recipient filed an appeal against this decision with the Federal Court, which rejected the appeal.
In its considerations, the Federal Court first intensively addressed the criticism of its previous “Microsoft jurisprudence” (Judgment of March 11, 2011, BGE 137 II 313) and evaluated from various perspectives whether the conditions for a change in jurisprudence were met.
As a reminder: In 2009, the Federal Office for Buildings and Logistics awarded a supply contract for the extension of licenses, maintenance, and support for the standardized federal workplace and related applications directly to Microsoft. This award was justified by the fact that only Microsoft could be considered for technical reasons. The Federal Administrative Court did not entertain an appeal by several open-source software providers due to lack of standing. The Federal Court rejected the appeal filed against this and ruled that the Federal Administrative Court had rightly denied the appellants’ standing with the following reasoning: If it is argued that the direct award procedure was carried out improperly, standing to appeal is only granted to potential providers of the procurement object defined by the awarding authority. The appellants would have had to specifically offer an alternative product and demonstrate its functional and economic equivalence if they wished to legally challenge the restriction of the procurement object to Microsoft products.
In legal doctrine, this judgment was widely criticized, and several cantonal courts deviated from this Federal Court jurisprudence, especially since it reversed the burden of proof for a direct award based on intellectual property or technical reasons under Art. 21 para. 2 lit. c BöB / IVöB in favor of the awarding authority. Furthermore, this jurisprudence contradicted the principle that whoever invokes an exceptional circumstance for a direct award must prove that the conditions for it are met.
The Federal Court has now revised its jurisprudence in its judgment of November 6, 2023: An appellant challenging a direct award under Art. 21 para. 2 lit. c BöB / IVöB must still credibly and plausibly demonstrate that they are a potential provider for the procurement object. However, new and in departure from previous supreme court jurisprudence, the awarding authority bears the burden of proof that there is no suitable alternative to the direct award. Therefore, even before a direct award under Art. 21 para. 2 lit. c BöB / IVöB, it must specifically and in detail consider reasonable alternatives and also bears the burden of proof for this fact in a potential appeal procedure. According to the Federal Court, the mere fact that a product change might incur significant additional costs does not, in itself, render an alternative unsuitable. This new distribution of the burden of proof is likely to significantly complicate the use and expansion of long-standing IT solutions in the future.
The French-language judgment of November 6, 2023 (BGer 2C_50/2022) is scheduled for publication.
