This year’s IT procurement conference took place on August 27, 2024 at the Von Roll site in Bern under the motto “IT procurement 2.0: Release the handbrake”. It was the 13th edition of the conference. “But the topic does not seem to us to be exhausted by any means,” said Thomas Myrach, professor at the Institute of Business Information Systems at the University of Bern, in his welcoming speech. The approximately 400 interested participants who attended the event organized by the university, the Bern University of Applied Sciences and various authorities clearly confirm this, he added.
A judgment and its consequences
A revised federal law on public procurement (PPP) has been in force in Switzerland since 2021. Whether this has been accompanied by a paradigm shift is debatable, commented Marc Steiner, a judge at the Federal Administrative Court since 2007; he himself was of the opinion that such a shift had indeed taken place, because possible dependencies or undesirable consequences for the supply chain now also play a role in award decisions. “Being stingy is no longer cool,” he summed up.
Steiner focused his lecture on a Federal Court ruling made last year which directly affects procurement. This concerned a procurement contract awarded to Microsoft in 2009 with a volume of 42 million francs, against which a competing supplier lodged an objection. The court decision essentially concerns the question of who has to provide evidence for or against a direct award decision. When the Federal Court first dealt with the case, it concluded that the supplier contesting a procurement decision must prove the existence of a satisfactory equivalent alternative. Several legal experts criticized this ruling and cantonal courts deviated from it, as Steiner explained. One problem is the documentation of direct award decisions. This is sometimes “not only thin, but illegally thin,” explained the judge. Sometimes the exact purpose of the commissioned solution is described so imprecisely that a competing supplier does not have the opportunity to prove an alternative solution for the required purpose.
The Federal Supreme Court also recognized this in 2023. It revisited its ruling and ruled that the contracting authority had to prove the absence of alternative clients. “Perseverance is occasionally rewarded,” praised Steiner.
For contracting authorities, this change means that they must justify and document private decisions more precisely. “There are still options for private decisions, but it is becoming more difficult,” explained Thomas Fischer, Chairman of the Procurement Conference of the Canton of Bern and Head of the Legal Department of the Bern Office for Information Technology and Organization (KAIO), in a panel discussion. Claudia Schneider Heusi, owner of a law firm and lecturer, agreed with him: It is feasible to document private decisions, for example with market investigations or technical reports. A market investigation must be fair, transparent and accessible to potential suppliers, she explained. However, the law does not stipulate how exactly a market investigation should be carried out. Fischer mentioned a “Request for Information” (RFI) as an option, i.e. a request for information that procurement authorities could publish at least in the old version of the Simap platform (in the new version This function should also be available soon). Even a Google search can be a market investigation if it is thoroughly documented. Steiner added that good documentation also serves governance, compliance and the fight against corruption.
Among the first – and yet not there
Finance director and centrist politician Astrid Bärtschi gave an insight into the IT procurement of the canton of Bern. She described the “un-Bernese speed” with which the canton adapted to the new procurement law. In 2019, the revised Intercantonal Agreement on Public Procurement (IVöB 2019) was issued. “We were convinced of it and wanted to benefit quickly,” explained Bärtschi. The political discussions were probably easier than in other cantons. The procurement law based on this agreement has been in force in the canton of Bern since February 2022. This makes Bern the third canton to join the agreement, said Bärtschi.
However, that is not entirely true. The canton of Bern is not yet officially a member of the IvöB, as Bärtschi explained. The reason: the agreement specifies the administrative court as the first instance for complaints. In the canton of Bern, however, the government representative has previously acted as the first instance of appeal, and the cantonal administrative court has resisted taking on this role due to the expected additional workload, said Bärtschi. This led to a strange tug-of-war: the Bern government council wanted to comply with the new rules and abolish the two-stage appeals process, but the Grand Council was against it; the other cantons involved in the IVöB refused to accept Bern as a member as long as the canton stuck to the two-stage appeals process; and finally the Bern administrative court declared that Bern had joined the agreement. Nobody really knows whether Bern is now a member or not, summed up the finance director. Sooner or later, the Federal Court will probably have to say what the matter is.
In practice, however, this has little effect: the provisions of the IVöB are considered cantonal law and are applied. However, Berne is not allowed to have a say in decisions to amend the agreement.
The canton accompanied the introduction of the new rules with training courses and a hotline, among other things. In retrospect, this was worth it. The government councilor backed up the statement with figures: In 2022, 17 complaints were received about procurement decisions (5 percent of all awards), while in 2023 there were 11 (2.5 percent of all awards). “Our procurement officers are doing a good job, and the market recognizes that,” Bärtschi summed up.
IT procurement takes place on three levels in the Canton of Bern: The Office for Information Technology and Organization is responsible for basic ICT services, such as workstations, network equipment or printers. Both specialist departments and the KAIO are responsible for group applications. The office and organization-specific solutions are procured by the respective specialist departments.
Dank sound strategic foundations Good governance structures have been created, explained Bärtschi. Wherever possible, procurement is carried out jointly, even if this means that those involved have to forego special requests and plan procurement over the longer term.
Bärtschi also wanted to see more joint procurement at the intercantonal and federal level. The best outcome for taxpayers is achieved “by countering the market power of the monopolists with great purchasing power.” She called on the federal government and the Swiss Digital Administration (DVS) organization to take the lead in this.
Dare something new
In ten specialist sessions, the audience was able to delve into specific topics over the course of the conference. For example, there was an in-depth look at usability experience (UX), which, according to the speakers, is often forgotten when creating specialist applications or government websites. A better UX not only ensures greater satisfaction among employees, but also greater trust on the part of the population, as Florian Divis, UX designer at Adnovum, explained.
Another group of speakers presented the alliance model for procurement. It is to be used in the canton of Basel-Landschaft for a construction project soon and integrates all those involved from the beginning of the project. It creates a level playing field among those involved with the aim “that not everyone only pursues their own interests,” explained lawyer Mario Marti. But while the model is certainly interesting for the construction industry, it is not yet clear whether and how it could be useful for IT projects, as the discussion at the end of the specialist session showed.
The conference concluded with a discussion of open source and digital sovereignty. In Germany, the Center for Digital Sovereignty (Zendis) acts as a link between public administration and the open source ecosystem, as its founder Andreas Reckert-Lodde explained. It promotes the provision and development of open source software and offers concrete solutions to simplify the procurement of open source software. A practical example is “Opendesk”, a collaboration solution based on open source components. The authorities involved exchange information and make their applications available on a common platform. Anyone who wants to can use these for their own purposes. It is worthwhile to get involved financially because you can then also determine which functions should be implemented, explained Reckert-Lodde.
Daniel Brunner, head of IT at the Swiss Federal Supreme Court, shared his positive experiences with open source software. He praised how quickly requests for changes or problem reports from his authority were dealt with by the respective open source software maintainers. You can have a direct influence on the source code, he said. The Federal Supreme Court receives 70 percent of its application support from a Swiss company and 30 percent from a well-known German company, explained the CIO, without naming any names. In this area, Europe still needs a stronger ecosystem, concluded Reckert-Lodde at the end of the discussion. “As a state, we are a major client, and we should take advantage of that.”
The next IT procurement conference will take place on August 27, 2025.
Open source software was also one of the topics at the Transform 2024 conference. What Find out more about what open source software does for public service here.
