The In-State Exception in Swiss Public Procurement Law: A Largely Unregulated Regulation

The revised Swiss Federal Act on Public Procurement, entered into force 2021, led to the codification of what is commonly referred to as “In-State” procurement: Article 10 III b excludes certain purchasing arrangements between legally separate public entities from the scope of the public procurement law. So while public procurement is usually subject to national as well as international rules on non-discrimination, competition and transparency, In-State procurement is exempted from these rules and can be awarded by public entities at their free discretion. EU law includes a similar concept, commonly referred to as “non-institutionalised exception”. However, while the 2014/24/EU Directive enumerates specific conditions that must be met to rely on this exception, the Swiss In-State provision merely states that the services in question should not be “offered in competition with private tenderers”. This article sheds light on the various criteria proposed to implement In-State procurement in practice. It then proposes an alternative, novel interpretative approach, analysing the categories of activities of public entities and their relation to the market to answer the question, whether they can be procured based on the In-State exception.