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Glossary

A


Abrogation of bankruptcy proceedings
Bankruptcy proceedings can be halted in certain conditions, defined in Art. 195 SchKG.
Acceptance
Acceptance by the contractor (principal) of a bid considered to best meet the published acceptance criteria. Acceptance brings the process of evaluation to an end and if above a certain threshold value the result must be made public. Acceptance is an adjudication decision against which other bidders can appeal to the Appeals Commission.
Acceptance criteria
Acceptance criteria are the requirements which bids have to meet if they are to be considered. Acceptance depends on the degree to which a bid meets the criteria.
Acceptance of appeal following conclusion of contract
The Appeals Commission cannot overturn the contested adjudication decision after a contract has been concluded, being limited to confirming its unlawfulness.
Adjudication decision
Act of sovereignty directed at an individual, through which a concrete legal relationship is established in accordance with administrative law, shaping the law in a way that is binding or in the form of a declaratory judgement.
Adjudication of bankruptcy
Decision of the competent court for the institution of bankruptcy proceedings. The exact date is given in the adjudication of bankruptcy decision (Arts. 171 and 175 SchKG).
Appeal procedure
As a rule the appeal procedure in public procurement is governed by the same principles that apply in other public or administrative law appeals procedures, although there are certain differences, notably concerning the suspensive effect, access to documentation and a prior hearing.
Appeal to superior authority
This above all makes it possible to seek legal redress against any violations of essential procedural rules or matters of public interest. An appeal to a superior authority can be made informally and at any time. Its only real importance is in cases where no decree has been made and therefore there can be no legal recourse to an appeal.
Appeals
An authorized party may within the legally prescribed time limit petition the Appeals Commission against the adjudication decision of the contractor (principal) by means of a substantiated appeal for legal remedy.
Appeals time limit
The time limit for an appeal is the period within which this legal remedy is valid, and in which the appeal must be lodged. In the case of Swiss federal government adjudication procedures this is 20 days from the notification of the decision.
Application to participate
In selective procedures the submission of a tender is usually proceeded by an application to participate. This enables interested parties to make known their desire to participate in bid proceedings. Unlike the actual tender the application to participate, if complete and within the deadline, may also be submitted by telegram, telex or telefax.
Articles of association
Set of rules or “constitution” governing a legal entity. They determine the way the company is run, both internally and externally. They cannot confer any rights or impose any obligations in relation to the company on third parties.
Assessment of value
The value of goods, total and partial construction contracts and services has to be calculated in accordance with certain rules in order to decide which tender procedure to adopt. Each type of procedure is determined by a so-called “threshold value”.
Association
A legal entity under private law whose basic purpose (ideal) has nothing to do with making money (Art. 60 ff. ZGB)
Attachment of bankrupt’s assets
On the adjudication of bankruptcy the assets of the bankrupt are at the exclusive disposal of the bankruptcy office or receiver (Art. 204 SchKG and Art. 169 StGB).
Auditors
Art. 727 ff. OR: fulfil the legal requirement for independent vetting of the accounts of a joint stock company, given the greatly restricted right of control of shareholders, their lack of personal liability, and the economic importance of a joint stock company; auditors are basically required to examine a company’s books and report their findings. Auditors must have the expertise required for the fulfillment of these tasks (Art. 727a OR) and must be independent vis à vis the board of directors as well as the main shareholders (Art. 727c OR).
AVIG
Federal act on the mandatory unemployment insurance and the insolvency remuneration of 25 June 1982 (SR 837.0)

B


Balance sheet
Comparison of all appraised assets with all liabilities in relation to third parties. The difference between the total value of all assets and the total value of all liabilities is defined as the “shareholders equity” and as such is set down on the debit side. In this way the total of all liabilities will be identical with the total of all assets (known as the “balance sheet total”).
Bankrupt
Debtor vis à vis all creditors. Person subject to bankruptcy proceedings.
Bankruptcy
Official proceedings for the enforcement of claims against a declared bankrupt and his or her realizable assets, in existence at the time of the adjudication of bankruptcy and notified in accordance with the legal requirements (Art. 159 ff. SchKG).
Bankruptcy enforcement
Procedure for the recovery by creditors of claims for payment in cash or of a surety by means of enforcement (=debt enforcement) in a compulsory manner (= compulsory execution). Debt enforcement begins with the serving of a summons to pay and involves either attachment or realization of the collateral or bankruptcy proceedings. If the enforcement is by means of bankruptcy proceedings, then the procedure is known as bankruptcy enforcement. The preconditions for this are to be found in Art. 39 SchKG.
Bankruptcy judge
The person responsible for deciding on the adjudication of bankruptcy (Art. 171 SchKG) including possible rejection of a request for bankruptcy (Art. 172 SchKG) or postponement of the decision (Art. 173 SchKG)
Bankruptcy office
Following adjudication of bankruptcy by the court, the bankruptcy office administers the bankruptcy proceedings, unless the creditors have put the proceedings into the hands of a special (extraordinary) receiver.
Bankruptcy proceedings
Official enforcement proceedings for the payment of cash or some form of surety in accordance with the provisions of the Swiss Debt Enforcement and Bankruptcy Law (SchKG) of 11 April 1889 in relation to specific debtor categories (above all those entered in the commercial register).
Bankrupt’s estate
Includes all attachable assets belonging to the debtor at the time of the adjudication of bankruptcy and anything that through an action of voidance (cf. Art. 285 ff. SchKG) can be attributed to these assets. This constitutes – regardless of its location – a single quantity (bankrupt’s assets) that in toto must serve to satisfy the creditors (Art. 197 Para. 1 SchKG). Assets which up to the conclusion of the bankruptcy proceedingss fall due to the debtor, are also part of the bankrupt’s assets (Art. 197 Para. 2 SchKG). Not included are wages earned during the course of the bankruptcy proceedings, since these are not due.
Bearer mortgage note
Mortgage note, in which the creditor is not named. The transfer of ownership is accomplished by simply handing over the note (Art. 869 Para. 1 ZGB); cf. also mortgage note.
BewG
Federal act on the purchase of land by persons living abroad of 16 December 1983
BewV
Ordinance on the purchase of land by persons living abroad of 1 October 1984
BGBM
Federal Act on the Internal Market of 6 October 1995 (fully in force since 1 July 1998).
Bid
The offer is the first manifestation of intent for the conclusion of a contract. As a rule the following are not legally considered bids in the context of public procurement contracts: calls for bids, invitations to tender in accordance with a selective process or proposals to participate, and likewise approaches in the context of an open market or invitation-based procedures. A offer should be made in writing, be complete and must be submitted in good time.
Bid proceedings (negotiations)
The offer is subject to a thorough discussion between the contractor (principal) and the tenderer in an effort to identify the strengths and weaknesses (in particular the cost/benefit ratio) prior to agreeing on the terms of the contract. This is quite separate form the (technical) evaluation of the proposal, the aim of which is to establish objective grounds for comparing the various offers, and then to match them with the relevant acceptance criteria. The latter – unlike the negotiations per se – is purely an administrative procedure.
Bidding cartel
An agreement between bidders for the purpose of preventing or hindering competitiion, interfering with the normal operation of public procurement procedures.
BKB
The BKB is the Government Procurement Commission. Its task is to coordinate contracts with suppliers and service providers, except in the case of Swiss Post and Swiss Federal Railways (SBB). The Commission makes recommendations, provides model contracts, information on general business rules and conditions and tariff guidelines and advises public contractors (principals). It also provides training for the latter and ensures their coordination.
BöB
Federal law on public procurement of 16 December 1994 (in force since 1 January 1996).
Breakup into “lots”
The possibility of dividing a total procurement order into several separate contracts or “lots” (e.g. an order for workstation computers might be divided into three lots: central processing units, screens and printers), put out to tender separately in each of the fields concerned.

C


Cantonal court
The main function of a cantonal court is that of an appellate court for both civil and criminal cases. It passes judgement on appeals including administrative appeals, and for the annulment of the decisions of courts dealing with labour and employment questions, property rentals, district courts and courts of arbitration, as well as the decisions of individual judges sitting in these courts. The cantonal courts is also responsible for the administration of justice at the cantonal level, oversees all civil and criminal court proceedings and directly and indirectly the activities of notaries public, the land register and bankruptcy offices, municipal offices and deft enforcement offices as well as justices of the peace.
Capital
1) In economics, one of the production factors, the others being land and labour; money for investment; 2) in a balance sheet the value of the total assets, distinguishing between borrowed capital and shareholders’ equity
Cessation of tender procedure
Notification to all tenderers of the decision of the public contractor not to award the contract (or only by means of a new procedure). This decision can be taken at any time, but must be in the public interest and there must be a good reason (e.g. failure to implement the project). In principle it should take the form of a decree (with the possibility of an appeal).
Charge on property
Limited right in rem; encumbrance of a property with certain obligations, liability for the fulfillment of which is attached only to the property (cf. Art. 782 ff. ZGB); these obligation pass to the present owner of the encumbered property. In accordance with Art. 782 Para. 3 ZGB the obligations deriving from the charge on property must either derive from the economic nature of the encumbered property or be determined by the economic requirements of the entitled property. For as long as these obligations are duly fulfilled, the charge on property is equal to a servitude. If not fulfilled however, the charge on property is treated as a statutory lien. The charge on property is thus intermediate between a servitude and a lien.
Claim
The right of one person (creditor) to payment by another person (debtor) in kind or in cash.
Claims, precedence
The longest standing limited right in rem (e.g. statutory lien) recorded in the land register takes precedence over the most recent (e.g. servitude), i.e. the person with the longest standing claim takes precedence over a more recent claim.
Collection
Collection of money for a claim
Collocation
In the course of bankruptcy proceedings the receiver examines the claims received and makes a decision on the existence of the claim, its amount and the order of priority, before establishing a formal plan of collocation (cf. Art. 244 ff. SchKG).
Commercial register
Register of companies maintained by the cantons, which among others includes entries for one person firms, general partnerships, stock corporations, joint stock companies, partnerships limited by shares, companies with limited liability, cooperatives, associations, foundations and branches (cf. Art. 10 Para. 1 of the ordinance on commercial registers). Anyone engaging in trade, manufacture or other types of commercial business activity is required to register his or her firm in the commercial register appropriate to the principal place of business (Art. 934 OR, Art. 53 ordinance on the commercial register).
Competition
The concept of "competition" has two possible meanings in the area of public procurement. In the sense of "economic competition" it refers to the efforts of several independant suppliers with access to a given market to be chosen over rivals to do business with a contractor (principal). Since public procurement law is intended to increase competition between suppliers, the level of open competition for goods, services and building contracts tends to be high. The creation of a truly competitive environment makes it possible to compare the goods and services offered and choose the best. In the sense of competition based on comprehensive assessments, it is a process in which several candidates try to come up with the best possible solution in an effort to meet a highly specific set of requirements, e.g. an architecture project. The organizer makes an award (prize) for one (or more) of the proposals. Participation in the competition is by appointment only.
Competition based on comprehensive assessments
Types of competition which enable the contractor (principal) to evaluate various solutions, notably from the conceptual, structural, ecological, economic and/or technical points of view.
Competition of ideas
A special kind of competition for solutions that would meet certain requirements, which have been duly described and delimited in a general way. The winner of the competition has no claim to any subsequent planning mandate.
Competition of projects
This type of competition calls for proposals that conform to clearly defined specifications and thus the identification of suitable partners for the realization, either partial or complete, of these proposals.
Competitive conditions, equivalent
Conditions in which a competition is organized, which must be the same for all participants. Thus foreign bidders must not find themselves at a disadvantage in relation to domestic suppliers (see also equality of treatment).
Conditions of employment
The minimum conditions of employment that must be observed are those contained in the (binding) statutory legal requirements. The conditions of employment are governed by the collective/normal labour agreements, and in the absence of any such, must conform to the actual local conditions customary in this occupation.
Consolidation
Bringing together the profit & loss accounts and balance sheets of a parent company and those of one or more subsidiaries, and relevant participation certificates.
Consortium of bidders
In principle a number of bidders may join together in a consortium, enabling them to bid as a single enterprise. Only in certain cases and with good reason can the public contractor (principal) rule out or impose limits on such a formation, which must be done at the time of the public tender.
Construction contract
The construction contract is a contract between the contractor (principal) and a supplier for the performance of construction work including civil engineering.
Contract
A binding agreement concerning mutual obligations.
Creditor
Person having a claim

D


Date of signing contract
A contract may be signed after acceptance of the bid except in the case of an appeal lodged with the Appeals Commission which has suspensive effect. Since appeals in most cases have a suspensive effect it is recommended practice to postpone the signing of a contract until the period of suspension is over.
Debt enforcement
The compulsory execution of debt enforcement takes the form of a payment in cash or a surety. Debt enforcement begins with the serving of a summons to pay and may involve attachment, realization of the collateral or bankruptcy proceedings.
Declaration of insolvency
The debtor declares himself unable to pay and invokes the adjudication of bankruptcy (cf. Art. 191 SchKG);
Directive for awarding contracts, intercantonal
See " Intercantonal directives for awarding contracts ".
Disposal of assets as per bankruptcy law
The debtor may no longer dispose of any part of the bankrupt’s assets once bankruptcy proceedings have commenced (Art. 204 SchKG), but up to the time of their realization he remains the sole proprietor.
Dividend equalization
One possible way of settling the estate: the claims of all creditors would be satisfied in equal proportions (portions), releasing the remainder of the debt.
Dividend list
Itemization of bankruptcy dividends to be paid to creditors (Art. 261 SchKG).
Dividend, bankruptcy dividend
SchKG: share of cover for claims at the time of dividing the bankrupt's assets between the creditors. Swiss company law: distribution of profits to the partners of a company.
Domicile
A person’s main place of residence (Art. 23 ff. ZGB).

E


Economically most efficent offer
In principle a contract is awarded to the supplier making the most economically favourable offer that comes closest to meeting the specific acceptance criteria of the contractor (principal). In the case of standardised goods it is normally the lowest bid that will be accepted.
Enforced realization
Realization of a bankrupt’s assets with or within his or her consent, in accordance with the Swiss Debt Enforcement and Bankruptcy Law (SchKG).
Equality of treatment between the sexes
A contract can only be awarded to suppliers who "observe equality of treatment between the sexes in relation to wages for employees working and providing services in Switzerland".
Equality of treatment in a tender procedure
Equality of treatment for suppliers, foreign and domestic, is a basic principle of all federal government procurement procedures. This means that no supplier should be put at a disadvantage compared to other suppliers, and likewise no supplier should have an advantage over other suppliers. The purpose of the principle of equal treatment is to ensure fairness in all procurement procedures: equal opportunities for all suppliers and procedures in which there is nothing arbitrary. This principle applies to the entire procurement procedure including the negotiation stage. The principle of equality of treatment applies not only to the relations between foreign and domestic suppliers, but it concerns also the equal treatment under itself. Foreign suppliers can appeal to the principle of equality of treatment only on condition that their country of origin applies the same principle to Swiss suppliers. In applying the principle of equality of treatment it should be determined on a case by case basis, whether certain differences might justify inequality (relative inequality of treatment) or whether despite certain differences there can be no question of inequality of treatment (absolute inequality of treatment).
Escrow agreement
Contract by which the depositor of a moveable chattel obligates the custodian to take charge of it and keep it in a safe place (Art. 472 ff. OR).
Estate
In the law of succession the estate refers to special assets (chattels, real estate, rights, obligations and debts) belonging to the joint heirs (joint ownership) prior to parceling out the estate, the administration and disposal of which must conform to particular rules.
Examination of qualifications
Comparing the financial, economic and technical qualifications of individual bidders with the qualifying criteria.
Exceeding discretionary power
It is a violation of the relevant legislation when an authority makes use of its discretionary power in an area in which the relevant legislation (acts, ordinances) allow no such power (either there is no discretionary power or the authority adopts a measure that is not allowed for in the relevant legislation). Exceeding discretionary power constitutes due cause for appeal. An example is when a contractor (principal) fails to take essential acceptance criteria into account.
Exclusion
Notification by the contractor (principal) of one or more entrepreneurs, that they are not to participate further in the procedures. This decision can, if the grounds for exclusion are sufficient and the effect is not excessive, be taken at any time. In principle it should take the form of a decree (with right of appeal).
Extraordinary matrimonial property scheme
Separation of assets by order of court or in accordance with legal requirements (Art. 185 ff. ZGB).

F


Filing deadline
Deadline for notification of claims (e. g. in the case of bankruptcy proceedings)
Filing for bankruptcy
Notification of the judge that a company’s liabilities exceed its assets, in the sense of Art. 725 Para. 2 Swiss Code of Obligations (for GmbH Art. 817 SCO). In such a case of over-indebtedness, the judge must consider the case for an adjudication of bankruptcy.
Foundation
Assets dedicated by the founder from his own funds for a long term purpose defined by the founder, and placed at the disposal of an independent legal entity in its own right.

G


GBV
Ordinance of 22 February 1910 on the land register (SR 211.432.1).
General terms & conditions
General terms & conditions. These are contractual provisions which have been formulated in a general way (as a rule by one party) in order to serve for a variety of contracts. cf. the terms & conditions of the Swiss Confederation, and as for online subscriptions in the “site map”, "Online subscriptions".
Global tender
A special competitive procedure in which the contractor (principal) puts both design and implementation services out to tender. This makes it possible to evaluate the conceptual, design and technical aspects of various possible solutions.
Goods procurement
Contract between the contractor (principal) and a bidder for the procurement of moveable goods or chattels, which may be by purchase, leasing, rental, leasehold or hire purchase.
GPA
Treaty on certain aspects of public procurement of 15 April 1994 (in force since 1 January 1996).
Grace period
Additional time which may be granted to allow a party the possibility of improving a submission, unless the latter is clearly unacceptable.

H


Headings covered in the SOGC
The following topics are covered in the SOGC: commercial registers, bankruptcies and certificates, debt enforcement, notification of creditors, lost securities, brands, public procurement markets, precious metal controls, other legal publications, balance sheets, information service, trade journals.
HRegV
Ordinance on trade register of 17 October 2007 (SR 221.411).

I


In writing
Formal minimum requirement that a declaration of intent must be written down and signed.
Insolvency indemnity
Indemnity paid to former employees by the unemployment insurance after an employer’s bankruptcy. The employee’s right to this indemnity is based on a claim arising from the employment relationship at the time of adjudication of bankruptcy (cf. Art. 51 ff. AVIG [SR 837.0]).
Intercantonal directives for awarding contracts
Directives issued by the Swiss Conference of Directors of Public Works, Planning and Environmental Protection for the purpose of harmonising the cantonal rules for awarding contracts, and which concern tender procedures for public procurement contracts.
Inventory, official bankruptcy
To ascertain the bankrupt’s assets; includes all assets of the bankrupt (property, moveable chattels, securities, funds and miscellaneous claims as well as cash on hand); items of strict necessity (in the sense of Art. 92 SchKG) are also included in the inventory, but subsequently left in the possession of the debtor in the adjudication decision; moveable chattels which the debtor indicates as the property of third parties or which the latter claim to be their own are also included in the inventory.
Invitation to offer
One party (as a rule the contractor (principal)) makes known his or her readiness to conclude a contract and requests bids from potential suppliers. This may either be through direct invitations to certain suppliers or by means of a general invitation to tender.
Invitation to tender
An invitation from the contractor (principal) to various potential suppliers to submit bids for specific building contracts, service contracts or supply contracts. In principle this must be issued in the form of a decree (with right of appeal) and must contain the necessary basic information.
Invitation to tender information
The public tender is accompanied by information specifying the requirements potential suppliers are expected to meet. These include certain minimum requirements.
IPRG
Federal Law on International Private Law of 18 December 1987
Items of strict necessity
Debt enforcement must bear in mind the economic state of the debtor and hs family. For moral, social and economic reasons, certain assets should not be distrained (cf. Art. 92 SchKG), e.g. clothing, household utensils and furniture needed by the debtor and his or her family for their personal use. This is intended to apply only to natural persons (not legal entities).
IVoeB
Intercantonal agreement on public procurement of 25 November 1994.

J


Jurisdiction
Jurisdiction at the district level (lower court/appeals body)

K


KG
Federal Act on Cartels and other Restraints of Competition of October 6, 1995 (in force since 1 July 1996). The purpose of this Act is to prevent economically or socially harmful effects being caused by cartels or other other barriers to competition and to promote competition in the framework of a free market economy.
KOV
Ordinance on the administration of the bankruptcy office of 13.07.1911

L


Land registry office
Cantonal authorities whose responsibilities include establishing and updating a land register.
Legal entity
Association of individuals or assets which the legislator recognizes as having personal rights and thus subject to the law (Art. 52 ff. ZGB).
Legitimation of appeal
The right of appeal is justified in the case of a person directly affected by the contested adjudication decision and who has a valid interest in the decision being overturned or altered.
Liability of contractor (principal)
The legal responsibility of the contractor (principal) for claims against his or her assets.
Limitation
The invalidation of a claim beyond a given period of time, which means a debtor is within his or her rights to refuse payment of the sum due. The period of limitation thus affects the enforceability of the claim. The limitation can however be suspended (notably in the context of a lawsuit or debt enforcement).
Liquidation of the estate via bankruptcy
The estate is waived by all legally recognised next of kin and is therefore liquidated by the bankruptcy office, which following bankruptcy proceedings is responsible for realising the estate (Art. 573 ZGB).
Liquidation value
Value of a company that is being wound up. The liquidation value should not be confused with a capitalised income value, but only as breakup value, since income would require a continuation in business.
Liquidator
A professional whose job is to realise assets in the form of cash.
Liquidity
a) Generally taken to mean cash funds (e.g. a company that has sufficient liquidity).b) Otherwise liquidity also means the ability of a company to honour its liabilities as and when due (the company is liquid).c) In the context of the stock market, liquidity is the ease with which shares can be bought and sold, which can be expressed in terms of the volume of trade (total number of shares or their total value per trading day). An essential criterion from the economic point of view is the volume which a shareholder can sell in a day without causing the price to fall. This is often measured by the so-called “bid-ask spread”, i.e. the difference between the offer price and the price bid).

M


Market access, free
The principle that non-local bidders should have equal access to contracts put out to tender by a public procurement office, i.e. they have the same right for consideration at the time of adjudication as any local bidders. This principle applies only if the non-discrimination requirements are met.
Mergers & acquisitions
Union of companies by contractual agreement and without liquidation into a single legal entity. The assets and liabilities of one company (at least) are transferred to the other/new company. Acquisition: one company takes over another company (or several). The company making the acquisition(s) remains while the other(s) are dissolved in the merger. Combination: two or more companies join together to form a new company. The companies concerned may be dissolved or become an integral part of the new company.
Mortgage not in the name of the property owner
Security in the form of a mortgage note, in which creditor and debtor are one and the same. Cf. Art. 863, 873 ZGB, Art. 114 Para. 1, 3 OR, also Art. 859 ZGB.
Mortgage note
A mortgage note substantiates a personal claim and at the same time ensures the creation of a security which having an exceptional legal guarantee is readily negotiable (cf. Art. 842 ff. and Art. 854 ff. ZGB). Its transfer must be in accordance with the rules governing negotiable instruments, cf. "Bearer mortgage note" and "Nominal mortgage note".
Most favoured nation
The principle according to which a party to an international treaty undertakes to grant to a third nation (which may not be a part to the treaty) the same trading opportunities enjoyed by other parties to the treaty.

N


Natural person
Real persons, in contrast to corporations or institutions which are legal entities (cf. Art. 31 ZGB).
Negotiations
Detailed discussions between the contractor (principal) and the bidder, which help identify the strengths and weaknesses of a project (notably the cost/benefit ratio) and eventually to agree on the terms of the contract. This process is distinct from a technical evaluation of the bid, which helps to establish an objective comparison of the various bids received, before considering them in the light of the acceptance criteria. The latter, unlike the negotiations proper, is a purely internal process.
Nominal mortgage note
A mortgage note on which the creditor is mentioned by name. Transfer of the creditor’s rights requires a signed record of the transfer (endorsement) in addition to the physical transfer. cf. also mortgage note.
Nominal value
The nominal or face value of a share or a participation certificate (often a round number, e.g. CHF 100.-) designates a share of ownership in a company in relation to the total shareholders equity or the participation capital. The market value of a share is entirely independent of its face value. In the case of companies with an unblemished reputation the market value will be significantly higher than the nominal value. In Switzerland the nominal value has to be at least CHF 0.01. Elsewhere (e.g. USA) shares with no nominal value are common. The share of ownership is in this case defined by the number of shares held compared to the total number of shares issued.
Non discrimination
The principle according to which bidders from other treaty nations, their goods and services, are not treated unfavorably in comparison with bidders of the home country, their goods and services.
Notary service
Swiss cantonal offices perform the duties of a notary (e.g. attestation of declarations of intent, drawing up of official documents, authentication of signatures, protests, etc.), the administration of land registers (e.g. establishing and updating a land register) and of bankruptcy officials (e.g. conducting bankruptcy proceedings), cf. also Art. 1 ff. law on notaries public.
Notification of adjudication decision
Official publication of an adjudication decision or its notification in writing to those participating in the tender procedure and possibly to third parties. The decision must be published as such in the Swiss Official Gazette of Commerce (SOGC), it must be substantiated, and the right of appeal must be made clear.

O


Official liquidation of the estate
At the time of official liquidation (with a valuation of the estate carried out by a notary’s office; Art. 593 ff. ZGB) heirs and creditors of the testator can demand that liabilities be disposed of before the assets of the estate are relinquished to the heirs and that until this is done no attempt be made to amalgamate the estate with the assets of the heirs. In the case of estates that are overindebted the official liquidation will be replaced by liquidation in the context of bankruptcy proceedings.
Open tender procedure
Tender procedure according to which the goods and services required must be put out to public tender and all suppliers are free to bid.
Opening of tendering offers
Both selective and open procurement procedures must follow specific formal regulations.
OR
Federal Act of 30 March 1911 supplementing the Swiss Civil Code (fifth volume: Swiss Code of Obligations), SR 220.

P


Payment summons
Formal request from a debt enforcement authority to a debtor for payment of the sum due (Art. 69 SchKG).
Penalty clause
Undertaking of the debtor vis à vis a creditor to pay an agreed forfeit in the case of non-fulfilment or inappropriate fulfilment of contractual obligations (cf. Art. 160 ff. OR)
Place of business (head office)
"Domicile" of a legal entity (Art. 56 ZGB).
Place of performance principle
According to this principle contracts may only be given to suppliers who respect the work and employment conditions including safety regulations of the place of performance.
Planning competition
A term which covers competition of ideas and competition of projects
Prequalification
In selective procedures the invitation to tender is followed by a qualifying examination, which is a formal independent part of the overall procedure. Candidates must be able to demonstrate their ability to meet the requirements stipulated.
Principle of territoriality
The notion that a law is only valid and applicable (having the effect of law) in the area in which the state which promulgated the law has sovereignty.
Procedure
Sequence of steps required for the execution of a legal process, e.g. a tender procedure or an appeal procedure.
Procedure, cessation
See "Cessation of tender procedure".
Procedure, recommencement
A tender procedure can be terminated and restarted. This occurs only if:- no bid meets the criteria and technical specifications defined in the invitation to tender documentation- the likelihood of better bids due to new developments at the technical level or improvement at the level of competitive conditions
Property
This concept is defined in Art. 655 Para. 2 ZGB to include landed property (for concept definition cf. also Art. 3 Para. 2 of the land register ordinance), permanent and independent rights registered in the land register, mines as well as co-ownership shares in property.
Public contractor (principal)
See "Contractor (principal) public".
Public contractors (principals)
The public contractors (principals) are those (public or possibly private) procurement offices that come within the terms of the public procurement order, being either explicitly listed or (in specific sectors) included in the generally accepted definitions.
Publication
Announcement in official publications (e.g.Swiss Official Gazette of Commerce, the cantonal gazette and the regional press) in certain cases required by law. Examples include an adjudication of bankruptcy and the sale of a property by public auction.
Publication organs
The Swiss Official Gazette of Commerce (SOGC), the cantonal gazette (Art. 35 SchKG) and in general also a local newspaper in a debtor’s place of residence or at the domicile of the ehead office.

Q


Qualifying bidders
Only bidders who meet the tender criteria may participate further in the procedure. Bids willl then be examined to determine the degree to which they meet the acceptance criteria.
Qualifying criteria
The contractor (principal) defines the specific financial, economic and technical requirements for the tender procedure which will determine the suitability of potential offerers.

R


Realization
Turning a bankrupt’s assets into cash, e.g.by selling, closing bank accounts, liquidating an insurance policy, etc.
Reasons for appeal
Appeals can be made against violations of the law as well as incorrect and/or incomplete ascertainment of the legally relevant facts of the case. This applies equally to falling short of or exceeding the discretionary power and its abuse, but not however to the disproportionate nature of a adjudication decision.
Reasons for exclusion
The reasons for exclusion may concern individual tenderers or the offer. In federal government awarded procedures a tenderer can above all be excluded for the following reasons:- no longer fulfils qualifying criteria- the contractor (principal) has provided false information- failure to pay income tax and/or social security contributions- failure to meet the obligations laid down in official procedures - is involved in bankruptcy proceedingsA bid or tender can be excluded from participation in federal government adjudication procedures if a significant error is found in the form.
Receivership
The bankruptcy office ensures conservation of the bankrupt’s total assets and eventually their realization (Art. 240 SchKG). The duties of the official receiver are performed by the bankruptcy office; however the first meeting of creditors is free to decide on the appointment of an extraordinary receiver (Art. 237 Para. 2 SchKG).
Reciprocity
Principle according to which equal access to Switzerland’s procurement markets is granted only to bidders from countries that grant equal access to Swiss bidders.
Recommencement of tender procedure
A contractor (principal) may terminate a tender procedure with a view to beginning it afresh, if none of the bids received meets the criteria and technical specifications defined in the invitation to tender documentation, or if warranted by subsequent technical developments, or if there has been improvement in the competitive conditions.
Reduction claim
If the testator has exceeded his or her powers of disposal, in such a way as to impair the legal share (Art. 470 f. ZGB) of the heirs or spouse, it is possible to seek a a reduction to the permitted amount. This requires a reduction claim (Art. 522 ff. ZGB) and corresponding plea.
Register
To avoid having to vet each bidder in a procurement procedure, the contractor (principal) may institute a vetting system, assessing suppliers for their conformity with certain qualifying criteria and listing those who qualify in a standing register. Suppliers may at any time ask to be included in such a register. Likewise a contractor (principal) who feels that a supplier no longer meets the requirements may at any time remove the supplier from the register, if able to justify the decision to do so.
Registered share
A registered share is one to which only the named shareholder or his or her legal heir has title. Unlike a bearer share it is not a security, but only an order instrument, which can be legally transferred only by an act of cession in which the previous holder of the share acknowledges by his or her signature having relinquished it.
Remuneration of tenders
In principle suppliers have no right to remuneration for the work that went into preparation of a bid. But although it is not customary today to make any such payments exceptions are possible, notably in the case of planning studies.
Restricted tender procedure
Tender procedure without an open invitation to tender, in which the contractor (principal) asks selected suppliers to submit bids.
Review
If an adjudication decision is contested the contractor (principal) may decide to review the decision before responding to the appeal.

S


SchKG
Swiss Debt Enforcement and Bankruptcy Law of 11 April 1889; SR 281.1
Security paper
A security is a certificate, the possession of which is a prerequisite for enjoyment of the entitlement it represents. The person laying claim must have physical possession of the certificate (Art. 965 OR).
Selection of participants (direct invitation procedure)
Tender procedure without a general invitation to tender, in which the contractor (principal) directly requests several (at least three) potential offerers and asks these to tender.
Selective procedure
Tender procedure in which the invitation to bid follows applications from interested parties wishing to participate, and the formal vetting of these according to the relevant qualifications.
Service provider contract
Contract between contractor (principal) and a supplier for the provision of specified services.
Share capital
The capital required by law for the formation of a stock corporation, which is divided into shares of a fixed amount with the ownership structure defined in the context of the company.
Share capital reduction
A formal reduction in share capital is possible, however for the purpose of protecting creditors the Swiss Code of Obligations imposes a number of conditions (e.g. notification of creditors). The share capital can be paid back to shareholders on a tax-free basis. This can be done mainly in three ways: refunding of capital that is no longer needed in the context of restructuring or overcapitalisation, in lieu of dividend or in order to reduce the value of the company, e.g. to enable a MBO.
Statutory lien
Limited right in rem, which gives the entitled person the right to order the realization of a property (to which the lien is attached), in order to use the proceeds to obtain payment for a secured claim.
Summary bankruptcy proceedings
The most common of all bankruptcy proceedings.Rational, simplified, rapid and relatively informal bankruptcy proceedings that can be adopted in straightforward cases or when the costs for normal procedures cannot be met.
Supervision of the tender procedure
Ensuring respect for the tender procedure requirements, notably in so far as the following are concerned: protection of the workforce, equality of treatment of the sexes, qualifying criteria, and the amounts owed for tax and social security contributions, anti-competitive practices, and a offerer’s inability to pay.
Supply contract
Contract between the contractor (principal) and a offerer for the procurement of moveable goods, which may be by purchase, leasing, rental, leasehold or hire purchase.
Suspensive effect of appeal
If after weighing the interests involved in the case the Appeals Commission grants a suspensive effect, the contractor must wait at least until the final decision on the appeal before conclusion of the contract. The granting of a suspensive effect is thus an essential aspect of legal protection. It is up to the appellant however to ask for the suspensive effect.
Sworn statement
Statement of a fact sworn to before an official, which has greater probative force.

T


Tender procedures
Procedures involved in tendering for goods, services or in the framework of a construction contract. These formal procedures must be as transparent and open to competition as possible, ensuring equality of treatment for all bidders. The tender procedures are as follows: open, selective, by direct invitation or restricted tender procedures.
Terms & conditions, general
See " General terms & conditions "
Threshold value
The benchmark value of a procurement contract, in Swiss francs, that determines the nature of the tender procedure required by Swiss law.
Total value of procurement item
The total monetary value of all the services necessary for the completion of a project must be calculated in order to see if a threshold value has been reached.
Transparency
The principle of transparency above all requires procurement procedures that are comprehensible to potential bidders, i.e. making it clear who is to do what, where and why. In particular this means:- the tender procedure must be as public as possible- the acceptance criteria must be listed in the order of importance

U


Unfair competition
Failure to observe the rules of competition by unfair or unlawful advertising and/or selling methods or business practices which are deceptive or in other ways violate the principle of good faith, such as to influence the relationship between bidder and contractor (principal). Example: failure to respect working and employment conditions required by law or specified in the contract.

V


Value of the contract
The contractor (principal) calculates or estimates (see "calculation of value") the amount of money for the service to be provided by the offerer. The value of the contract can together with the threshold value have an effect both on the choice of procedure and on the legal remedy.
Value threshold clause
Services in the context of a building project whose value falls below a certain amount (absolute) and at the same time below a given percentage of the total building contract (relative) do not need to conform to the provisions of the BöB.
VoeB
Swiss Federal Ordinance on Public Procurement of 11 December 1995. This regulates tender procedure for public procurement contracts in accordance with the BöB as well as other federal procurement procedures and forms of competition for planning projects, etc.
VwVG
The Swiss Federal Law on Administrative Procedures of 20 December 1968. With certain exceptions the law also applies to procurement procedures..
VZG
Swiss Federal Supreme Court ruling on the compulsory realization of property of 23 April 1920 (SR 281.42)

W


WEKO
The Swiss Competition Commission investigates and punishes unwarranted restraints on competition (e.g. cartel agreements, abuse of a dominant market position), provides expert opinions on competition questions and advises the political authorities on such matters.
Workplace safety regulations
This concerns the various safety and health protection standards that apply in the workplace. Respect for these standards can have an impact on the concrete tender procedure. Here too local regulations must be observed.

Z


ZGB
Swiss Civil Code of 10 December 1907 (SR 210)
 
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