Any legislation, procedure or practice, such as taxes, tariff preferences, local content requirements, local investment or production requirements, licensing or licensing conditions, financing or tendering rights that discriminate or require that the products, services, suppliers or suppliers of the other contracting party be discriminated against when awarding contracts is prohibited. For many years, there has been a wide-ranging doctrinal debate as to whether and under what circumstances public bodies such as universities or other government-controlled enterprises have the right to participate in tendering procedures. In 2017, the Bundesgerichtshof considered an appeal brought by a private telecommunications company against the Federal Office for Communications (OFCOM). OFCOM has a service contract at the University of Zurich, which is entirely controlled by the canton of Zurich. The applicant criticized the award on the grounds that the BJEV had violated public procurement law by ignoring the fact that the University of Zurich was publicly funded and that such funding led to an illegal competitive advantage of the university over private bidders. The Tribunal found that government-funded bidders should behave in a competition law neutral manner. In particular, these operators are obliged to completely separate their commercial activities from their monopoly activities, otherwise they are not allowed to participate in tendering procedures. The Tribunal considers that the adjudicator powers are required to obtain further clarification when seeking offers from these suppliers. In addition, public service providers must be excluded from the tender if there is concrete evidence of a distortion of competition. The judgment can have a significant impact on future procurement practices and on the behaviour of publicly funded bidders.
However, the scope of the requirement for contracting entities to collect additional information is far from clear, as the courts have not yet provided any information on this matter (BGE 143 II 425). In addition to the ongoing revision of the legal framework for public procurement, the Bundesgerichtshof has made some remarkable judgments: both the law on cartels and abuses of dominant position and the law on the internal market complete the legal framework of public procurement. The enforcement authority is the Swiss Competition Commission; its decisions can be challenged before the Bundesverwaltungsgericht.