瑞士二○○○年政府財物、勞務、工程採購總金額超過三○○億瑞士法朗（約合美金二五○億元、新台幣八五○○億元），佔政府支出百分之二十五、國內生產毛額百分之八。以政府採購支出而言，聯邦政府佔百分十九，州政府佔百分之三十八，地方政府佔百分之四十三。列支敦士登中央政府、地方政府、特許經營事業採購金額，二○○○年三千七百萬歐元（約十五億新台幣）、二○○一年二千七百萬歐元（約十二億新台幣）、二○○二年一千六百萬歐元（約七億新台幣）。
列支敦士登乃歐盟成員，外國廠商投標除受ＧＰＡ規範外亦受歐盟相關法律規範，而瑞士因未加入歐盟，所以外國廠商主要受ＧＰＡ規範。值得注意的是瑞士在ＧＰＡ的承諾中不包括聯邦鐵路、郵政及國防事業。瑞士亦對其未完全開放市場之ＧＰＡ簽署國（如美國、日本）有ＧＰＡ適用之限制，另瑞士與歐盟已於二○○二年簽署政府採購雙邊協定並業已通知ＷＴＯ。
瑞士之政府採購規範於聯邦政府採購法（1994 Law on Government Procurement）及政府採購條例（1995 Ordinace on Government Procurement）。聯邦政府採購法包含有ＧＰＡ條文定義及ＧＰＡ門檻金額；政府採購條例規範中有列示ＧＰＡ適用機關和其他事項（例如低於ＧＰＡ門檻金額之採購方式、非ＧＰＡ適用機關之採購方式），該條例包含之原則有不歧視廠商、有效競爭、重視勞工權利和工作環境。
瑞士聯邦政府有四十二個機關可從事財物採購，而勞務則每一個機關皆可採購。聯邦採購委員會（The Procuremnet Commission of the Confederation）負責協調該國之財物和勞務採購，但不負責工程之採購。該委員會共有十六個委員，由聯邦議會任命。
瑞士共有四種招標方式：公開（open）、選擇（selective，有資格審查）、邀請（invitation，至少邀請三個廠商）、單一（single）。一般而言，ＧＰＡ適用標案採用公開或選擇招標程序，單一招標僅適用於政府採購條例規範第十三條所列舉之情形，ＧＰＡ門檻金額以下之標案理論上四種招標程序皆可適用，但實務上大多採用單一招標程序，聯邦政府採購法及政府採購條例規範皆沒有提供該國廠商特殊待遇。列支敦士登則於一九九五年制定法律將國際義務納入國內法中；一般而言，公開招標用於工程採購，其他採購則多用選擇性招標，法律上亦無提供該國廠商特殊待遇之條文。
Government procurement 1. In Switzerland, total public spending at all levels of government on goods, services, and construction exceeded Sw F 30 billion in 2000, amounting to approximately 25% of total public spending or 8% of GDP.[1] Total expenditure is shared between the Confederation (19%), cantons (38%), and communes (43%). Public procurement by the Liechtenstein Government, its communities, and companies with exclusive or special rights in 2000, 2001, and 2002 was estimated at respectively 37 million, 27 million and 16 million.
2. In Liechtenstein, in addition to the WTO Agreement on Government Procurement (GPA), the disciplines and threshold values for the participation by foreign suppliers are set by the relevant EEA rules. Given Switzerland's non-participation in the EEA, the GPA constituted the principal framework governing cross-border public procurement. Notable exclusions from Switzerland's commitments under the GPA are the federal railways, the Swiss Postand the public armament enterprises.[2] Switzerland made reservations on the application of the GPA to other signatories who had not extended comparable and effective access in certain activities to Swiss firms.[3]
3. The agreement on government procurement between Switzerland and the EU entered into force in June 2002 (Chapter II(4)(ii)(b)).[4]
Switzerland
4. The main law covering federal markets is the 1994 Federal Law on Government Procurement[5], and its 1995 Ordinance, as amended.[6] The law specifies the procurement regime; it also provides for, inter alia, periodic adjustments of definitions and threshold values to the relevant GPA provisions. The Ordinance specifies the procurement regime for purchases covered by the law as well as for all remaining areas, i.e procurements below the relevant threshold values, or purchases by entities excluded from Switzerland's commitments under the GPA. It provides for, inter alia, non-discrimination amongst eligible tenderers, effective competition, and the respect of workers' rights and working conditions.
5. At the federal level, 42 purchasing offices have been designated for goods; for services, each federal office does its own purchasing. The Procurement Commission of the Confederation coordinates public purchases of goods and services, except construction. Its sixteen members, including the chair, are nominated by the Federal Council.
6. Four types of tendering procedure are available: open tenders; selective tenders (with pre-selection); invitations to tender (at least three bidders must be invited); and single tendering. Procurement above the GPA thresholds generally follow open or selective tendering procedures. Single tendering is confined to cases foreseen in Article 13 of the Ordinance, such as the absence of any other suitable bidder. Any of the four tendering procedures may be followed for procurement below the GPA thresholds, but single tendering has generally been preferred. Contracts must be awarded to the supplier that has presented the most economically advantageous offer, closest to the criteria specified in the tender documentation. Neither the Law nor the Ordinance provide for preferential treatment to Swiss suppliers.
7. The 1994 inter-cantonal Concordat by the cantons translated the GPA into cantonal laws for public purchases by cantons and communes and of certain specified companies.[7] The Concordat applies to contracts exceeding Sw F 9.6 million for construction projects[8]; Sw F 383,000 for goods and services; and Sw 766,000 for goods and services purchased by public water, energy, and transport companies. The 1995 Internal Market Law (LMI) also specifically provides for non-discrimination in public procurement at cantonal and local levels, by allowing suppliers from any cantons to compete for contracts throughout Switzerland.[9]
8. An independent body, the Commission des marches publics Confederation/Cantons (CMCC) is responsible for the enforcement of Switzerland international commitments regarding public procurement contracts. An appeals commission (Commission de recours en matiere de marches publics, CRM) is in place to deal with complaints relating to federal government procurement contracts; these may not be appealed to the Federal Tribunal. At cantonal level, administrative tribunals are competent to deal with complaints arising from tendering procedures, which can be appealed to the Federal Tribunal. A number of structural problems regarding these appeals procedures were identified by a parliamentary study published in 2002, commissioned as part of the Government's recent evaluation of public procurement policies and practices.[10] Problems identified included conflicting decisions between the Federal Tribunal and the CRM, the high cost of procedures relative to their expected benefits, and worries expressed by suppliers about potential retaliation from purchasing entities when they appeal. Swiss law does not provide for appeals by surveillance bodies such as the CMCC (except in case of violation of international obligations) or the Competition Commission.
Liechtenstein
9. In Liechtenstein, in addition to the GPA, the threshold values for external competition in public procurement contracts are set by the relevant EEA rules. A 1999 law and regulation incorporate the international obligations of Liechtenstein into national legislation. In general, open tendering is required for construction works and related purchases. Public procurement in other areas is through selective tendering. There are no de jure preferences for local suppliers. Complaints related to public purchases may be lodged with the Government, the Administrative Court, or with the EFTA Surveillance Authority if EEA provisions are concerned. A joint declaration by Liechtenstein and certain neighbouring Swiss cantons enables suppliers from the latter to tender (on a reciprocal basis) for purchases below the threshold values. Since its last TPR, Liechtenstein has adapted its ordinance on public procurement with regard to the time limits for individual areas of the procedure (in accordance with EC directive 97/52/EC and 98/4/EC), and to standard forms in the publication of public contract notices (in accordance with EC directive 2001/78/EC).
10. A 2001 Amendment to the EFTA Convention was partly designed to incorporate the results of the bilateral agreements with the EU, whilst allowing for a complete revision of the Convention.[11] Accordingly, the coverage of the Convention was expanded, thereby aligning its provisions on government procurement on Switzerland's bilateral agreement on public procurement with the EU, which goes beyond the GPA (Chapter II(4)(ii)). The implementation of the bilateral agreement resulted in changes to both the Ordinance and the inter-cantonal Concordat, including their scope in terms of purchasing entities, threshold values, and the establishment of a surveillance authority (the CMCC described above).
11. Chapter V of EFTA's July 2001 Free Trade Agreement with Mexico (which is not a member of the GPA), covers government procurement.[12] Mexico committed to provide EFTA suppliers the same access conditions as suppliers from the European Union, United States or Canada, and the EFTA states have granted Mexico access similar to their GPA commitments, excluding the sub-central level. Under the chapter on government procurement of the EFTA-Chile Free Trade Agreement, signed on 26 June 2004, the Parties grant non-discriminatory access to each other's procurement markets for goods, services, and public works at the central government level, the sub-central leveland for theutilities entities listed in the respective Annexes.[13]
12. Since 2002, as a result of an initiative by the cantons of Geneva and Vaud, procurement contracts have gradually become advertised online throughout the country.[14] Eleven cantons and several big cities advertise online. The authorities indicate that the other twelve cantons and the Confederation will advertise electronically in the near future.
13. The parliamentary study mentioned above concluded that, while the legislation was functional for frequent and well defined purchases, it was difficult and in some cases impossible to apply it to atypical markets. Current legislation, according to the study, does not take into account the increasing tendency of public entities to delegate responsibilities to semi-public bodies or to the private sector. The study also noted that, because of technological development, actual procurement markets were increasingly complex, and adjudicators were faced with novel situations not envisaged in the legislation. The study highlighted the need for a clarification, simplification, and harmonization of current legislation. The multiplicity of federal and/or cantonal bodies was also found to require additional coordination and leadership. Partly as a result, federal public procurement legislation was under revision in May 2004.[15]
Construction
14. Under the GATS, Switzerland has bound market access and national treatment in all construction activities with the exception of certain construction work for civil engineering (exCPC513), special trade construction work (CPC515), and rental services for construction equipment (CPC518). Certain exemptions have been scheduled, as well as qualification requirements reflecting access restrictions to the Swiss labour market. The exemptions are: assembly and erection of prefabricated buildings and installation work for energy, heating, water, communications, and lifts. A variety of activities in these areas require permits or authorizations by cantonal or local bodies.
15. The WTO Government Procurement Agreement (GPA), the Inter-cantonal Concordat, and the bilateral agreement with the EU on government procurement have somewhat dismantled certain restrictions on construction activities in Switzerland (Chapters II(4)(ii) and III(2)(viii)). Nevertheless, construction services are still among Switzerland's highly protected activities.[16] Restrictions to trade in this subsector are fourfold: standards and technical regulations have traditionally been both particularly stringent and specific to Switzerland; several professions in the subsector continue to be regulated at cantonal level, with restrictions on work by out-of-canton suppliers; in the past, there have been a relatively large number of restrictive arrangements and other anticompetitive practices among suppliers that limited entry of new, including foreign, suppliers; and the limits on work permits for foreign employees limit the competitiveness of this labour-intensive subsector. Together, these factors have contributed to maintaining construction costs high by international comparison. The authorities indicated that corrective measures were being implemented.
16. Accounting for 6% of GDP and 7.5% of employment (Table I.1), the construction industry is an important contributor to, and beneficiary of, overall economic activity in Switzerland. The industry nevertheless recorded negative growth rates from 1999 to 2002 (Table I.2). Construction spending over the past ten years has not been dynamic and, at SwF 45 billion, was lower in nominal terms in 2003 than in 1995 (ChartIV.3). Imports of construction services appear to be particularly small, representing less than 0.5% of total activity in the subsector.
17. The construction industry has in the past suffered from various restrictive arrangements and other anticompetitive practices among suppliers. Inquiries by the Competition Commission (Comco) have covered kitchen and bathroom equipment, cables, bricks and construction stone, wallpaper, cement, concrete and road surfacing. Since 2000, the Comco has found four construction companies guilty of collusion on prices when tendering for renovation of the National Library.[17] In addition, an agreed regulation was reached with the Swiss Association of Builders (Schweizerische Baumeisterverband), which guarantees that the design of its competition rules is in conformity with the competition legislation. Another intervention concerned the new system of honoraries of the Swiss Society of Engineers and Architects (SIA).
18. The SIA, a member of the Swiss Association for Standardization (Chapter III(2)(vii)), initiates most standards for the construction industry. The SIA also issues reference wages, although these are ultimately negotiated between employers and employees. Stringent building zoning prescriptions cover areas such as land use ratios, minimum size of rooms, ratio of windows to ground surface, insulation, floor heights, and availability of bomb shelter. Construction products have yet to be included under the bilateral MRA with the EU. The authorities expect the new law on construction products[18], and the recent intercantonal agreement in this area, to help address these problems.
19. The 1995 Federal Law on the Internal Market (ChapterIII(4)(c)) was expected to establish a unified construction market in Switzerland, by eliminating barriers such as local residence and establishment requirements, and membership obligations in local trade associations. The LMI states that goods, services, and labour legally offered in one canton may be offered in any canton. As noted by the Federal Council in 2004, this law did not succeed in creating the free movement of labour and services across cantons, and high entry barriers continue to limit competition in regulated professions of the construction industry.
20. About two thirds of all employees in the Swiss construction subsector are foreigners; and about one third have temporary work permits. The federal authorities determine an annual global quota of permits, distributed to cantons and down to individual firms. Under certain cantonal regulations (e.g. in Geneva), allocation to firms is made on a historical basis. A company wishing to perform a construction contract in Switzerland must obtain a temporary permit for each foreign worker. In general, these permits are valid only for the site for which they have been delivered.
21. In Liechtenstein, the non-financial services regime applies to construction services (ChapterII(6)(ii)). The GPA and the EEA regimes apply in the public sector. Liechtenstein has included MFN exemptions under Article II of the GATS to ensure "adequate" market access to local suppliers of construction and related engineering services. Market access for these services is thus contingent upon reciprocity.[19]
Engineering and architectural services Switzerland
22. About 33,000 architects and 45,000 engineers work in Switzerland.[20] The market is highly fragmented, with the type of business ranging from independent specialists to large architectural and engineering offices and companies. The main professional societies in Switzerland are the Swiss Society of Engineers and Architects, and the Technical Union of Switzerland (UTS/STV).
23. In most cantons, professional names such as "architect", "engineer" or "technician", are not legally protected; thus, no licence is required for the exercise of those professions. Anyone, Swiss or foreign, can practice these professions. The exceptions are the cantons of Fribourg, Geneva, Lucerne, Neuchatel, Vaud, and Ticino, which regulate the professions of architect and civil engineer.[21] Aside from these six cantons, no registration is required in the Swiss Register of Engineers, Architects and Technicians (REG). The usual requirement in those six cantons is registration in the REG, or in the cantonal register. These registers are open to foreign professionals if they have been exercising their profession in Switzerland generally for two to three years. In line with the liberal approach adopted by Switzerland as regards the architectural and engineering professions, no limitations on market access or national treatment are (in general) imposed.
24. One country-wide exception is that official land measurements can be carried out only by licensed surveyors (ingenieur-geometre brevete); the licence is conferred to holders of a recognized Swiss degree from one of the two federal technical universities (in Zurich and Lausanne) or from a higher or a specialized Swiss school, after success in state-organized theory examinations.[22] Foreign diplomas are accepted if they provide the necessary education at university level in the 13 subject matters specified in the ordinance (RS 211.432.261). Two of these subjects are typically Swiss (Swiss official land measurements and Swiss languages and culture). Swiss nationality is also required. However, foreign surveyors can work under the responsibility of a licensed Swiss surveyor.
25. In addition to a diploma, REG registration (in the six cantons where it is required) typically requires at least three years of professional experience (two years for technical school graduates); foreigners may also be registered under the same conditions as Swiss and Liechtenstein citizens, provided they have been working in Switzerland for at least two years.[23] Access appears to be liberal for foreign suppliers even in the cantons that regulate. Under the bilateral agreement on the free movement of persons with the EU[24], the REG is entrusted with recognizing foreign architecture, engineering, and technical university degrees as equivalent to Swiss qualifications. Approval of foreign (non-university) technical and professional degrees is under the jurisdiction of the Federal Office of Professional Education and Technology.[25]
26. On 1 January 2003, new structural design standards, known as Swisscodes, were introduced, replacing the Swiss Society of Engineers and Architects (SIA) codes. Swisscodes, an SIA project in collaboration with the Federal Office of Construction and Logistics, and educational and industry institutions, constitutes a compressed form of Eurocodes, the harmonized EU standards, which will be introduced within five to ten years.[26] EU compatibility is expected to enhance bilateral market access because of the common basis of calculations and contractual provisions.
Liechtenstein
About 175 architects and 115 engineers are registered in Liechtenstein. There are both independent specialists and architectural and engineering offices and companies. The main professional society in Liechtenstein is the Liechtensteinische Ingenieur- und Architektenvereinigung, representing architects, civil engineers, electrical engineers, technical engineers, rural engineers, and surveying engineers. Professional names such as "architect", "engineer" or "technician" are legally protected. Requirements to obtain a licence to work as an engineer or architect are, in addition to a diploma, at least three years of professional experience, and an office in which to carry out the profession. Citizens from non-EEA-member countries or Switzerland need 12-years prior residence in Liechtenstein. Permanent domicile in Liechtenstein is required for non-EEA or non-Swiss citizens. To conduct engineering services as a surveyor of activities in the public sector, Liechtenstein nationality is required; however, foreign surveyors can work under the responsibility of a Liechtenstein surveyor.
[1] Commission des achats de la Confederation, "Presentation et analyse des reponses au questionnaire relatif aux forces et faiblesses du droit des marches publics", Projet de revision du droit des marches publics, 15March 2004. Available at: http://www.beschaffung.admin.ch/fr/beschaffungswesen_bund/themen_trends/
2004_05_08_gesamtauswertung_f.pdf.
[2] The federal railways reported purchases of goods alone of approximately Sw F 1.1 billion in 2002, about twice the total expenditure of the Swiss Post. La Vie economique, October 2003, p. 49.
[3] Currently, these reservations apply to, inter alia: Canada (regional bodies, entities in water, electricity, local transport, airports and ports subsectors, as well as certain services subsectors); the UnitedStates (communal bodies and water, local transport, airports and ports entities, as well as certain services subsectors and challenge procedures); Japan (communal bodies, electricity and local transport entities, as well as challenge procedures); the Republic of Korea (communal bodies, airports and local transport, challenge procedures); Israel (communal bodies, local transport, certain services subsectors and challenge procedures); and Singapore (communal bodies, water and electricity entities). For details, see WTO online information. Available at: http://www.wto.org/english/tratop_e/gproc_e/chegen.doc.
[4]The text of this agreement is available online at:http://www.europa.admin.ch/ba/off/abkommen/
f/beschaffungswesen.pdf. It was notified to the WTO in WTO document WT/REG94/R/B/3, 13September2004.
[5] Loi federale sur les marches publics, RS 172.056.1.
[6] Ordonnance sur les marches publics, RS 172.056.11.
[7] RS 172.056.4.
[8] Construction contracts awarded by communes account for nearly 50% of public sector construction in Switzerland, but are not subject to the GPA. They have been open to EU suppliers since 2002.
[9] Loi federale sur le marche interieur, RS943.02.
[10] See Organe parlementaire de controle de l'administration, "L’ouverture des marches publics en Suisse sous l’angle juridique et economique", Rapport final a l’attention de la Commission de gestion du Conseil national, Berne, 14 mars 2002. Available at www.parlament.ch.
[11] Accord amendant la Convetion instituant l'Association europeenne de libre-echange. Available at: http://www.admin.ch/ch/f/as/2003/2685.pdf.
[12] The agreement is available online at: http://secretariat.efta.int/Web/ExternalRelations/
PartnerCountries/Mexico.
[13] The agreement is available online at: http://secretariat.efta.int/Web/ExternalRelations
/PartnerCountries/Chile.
[14] The relevant website is http://www.simap.ch.
[15] Commission des achats de la Confederation (2004).
[16] WTO (2000).
[17] For further details, see "La Comco interdit le cartel des soumissions". Available at http://www.weko.admin.ch/publikationen/pressemitteilungen/00116/PC-181201-Submissionskartel-F.pdf
lang=fr.
[18] Loi sur les produits de construction, RS 933.0, and related ordinance.
[19] See WTO document GATS/EL/83 and GATS/EL/83-A, 15 April 1994 for Final Lists of Article II (MFN) Exemptions for Switzerland and Liechtenstein, respectively.
[20] UBS, "Swiss sectoral trends". Available at: http://www.ubs.com/e/about/research/
wealth_management_research/branchenspiegel.html [2 March 2004]. Another estimate, from the European Federation of National Engineering Associations (FEANI) elevates the number of declared Swiss engineers and architects to 127,000. FEANI online information. Available at: http://www.feani.org.
[21] A comprehensive list of regulated professions in Switzerland, compiled by the OPET, available online at: http://www.bbt.admin.ch/dossiers/anerkenn/eu/d/regl.pdf. For conditions in Lucerne, see Article 63 of the cantonal ordinance on planning and construction SRL 736. The canton of Vaud has similar provisions. See CMAC online information. Available at:: http://www.cmac.vd.ch/camac_ciev/doc_lib/printdoc.asptmpl=
ART106&id=0); for Geneva see http://www.ge.ch/legislation/L 540, Article 4).
[22] Ordonnance du 16 novembre 1994 concernant le brevet federal d'ingenieur geometre, RS211.432.261.
[23] REG online information. Availble at: http://www.schweiz-reg.ch/reg_f6.htm.
[24] Agreement on free movement of persons between the European Community and its Member States, on the one part, and the Swiss Confederation, on the other.
[25] Federal Law on Professional Education (BBG) of 13December2002.
[26] Office federal des constructions et de la logistique online inforamtion. Available at: http://www.kbob.ch.