Facts
The Federal Office of Communications (OFCOM) issued a service contract for the analysis of the SRG's online offering. The University of Zurich and A. AG submitted bids in a timely manner. OFCOM awarded the contract to the University of Zurich. A. AG then filed a complaint with the Federal Administrative Court, which referred the matter back to OFCOM to examine whether the University of Zurich should be excluded from the procedure due to a violation of the principles of public procurement law. The Federal Department of the Environment, Transport, Energy and Communications (DETEC) then filed an appeal in public law matters with the Federal Supreme Court.Considerations
The Federal Supreme Court first notes that the appeal in public law matters is admissible, as the estimated contract value reaches the relevant threshold and the question of whether a violation of the principle of competitive neutrality of state action constitutes a ground for exclusion in the procurement procedure is a legal issue of fundamental importance.On the merits, the Federal Supreme Court decides that a violation of the principle of competitive neutrality by a state provider constitutes a ground for exclusion within the meaning of Art. 11 PPA. This serves to achieve central objectives of procurement law such as strengthening competition, efficiency and equal treatment. The contracting authority is therefore obliged to carry out further clarifications in the event of concrete indications of such a…