Exclusion of a bidder from a tendering procedure due to lack of proof of compliance with working conditions

Facts

The X. AG, a bidder, was excluded from a tendering procedure for the award of a contract for universal communication cabling/230-V installations because it had not provided proof of compliance with working conditions in accordance with § 5 of the Basel-Stadt Procurement Act. The X. AG had submitted its application to participate in the tendering procedure with a confirmation from the Association of the Swiss Machine, Electrical and Metal Industry, stating that it was a member of this association and thus subject to the relevant collective labor agreement (Swissmem-CLA).

The Construction Department of the Canton of Basel-Stadt forwarded this declaration to the Permanent State Conciliation Office for examination, which found that the collective labor agreement of the Swiss Electrical and Telecommunications Installation Industry (SETI-CLA) was applicable. The X. AG was requested to provide proof of compliance with § 5 f. of the Procurement Act by no later than September 5, 2003, 4:00 p.m.

The X. AG submitted additional documents, which were considered insufficient, and was subsequently excluded from the procedure. The contract was awarded to the Elektrizitäts Aktiengesellschaft Basel (EAGB). The X. AG lodged an appeal against the exclusion and the award decision, which was rejected by the Court of Appeal of the Canton of Basel-Stadt.

The X. AG then filed a constitutional complaint with the Federal Court, requesting that the judgment of the Court of Appeal be set aside and the procurement contract be awarded directly to the complainant.

Considerations

The Federal Court examined the constitutional complaint and came to the conclusion that the cantonal authorities were entitled to assume that the Swissmem-CLA did not cover the work offered. However, the Court found that the tendering authority had not given the X. AG a proper opportunity to demonstrate the equivalence of its CLA with the one considered applicable.

The Federal Court found that the deadline set for the X. AG to provide proof of equivalence was extremely short and insufficient. The…