No one has a clear view when it comes to the procurement of IT solutions for the public sector. At such a statement you can be misled easily, you look at the media coverage on the issue. One scandal follows the next, across the bodies of the Federation, the cantons and municipalities. Most high cost or an opaque lending policies play a central role. The cause of such failures is often suspected in the complexity and abstractness of IT projects. In its planning and implementation of IT projects are extremely demanding and expensive and, unlike for example, construction projects are less tangible than software solutions. Runs the procurement of IT projects fails, the bodies of public risk Submission complaints, together with political criticism. So are required careful planning and a constant monitoring of orders throughout their duration. What to look for when purchasing IT projects and especially where to hide potential stumbling blocks will be discussed below with reference to a recently discussed in the media case of the Canton of Solothurn.
Document scanning for Solo Turner Canton Administration
The cantonal administration in Solothurn decided in 2002, a large number ofdocuments to make available electronically . The digitization of documents has been transferred as a commissioned an external IT service provider. The one-time cost of this order amounted to 164’000 CHF. There were annual follow-up costs in the five-figure range. In 2006 the same company received another order. Since then, the IT service provider all tax returns scans of Canton an , collects data and transmits it in digital form to the cantonal tax authorities. The order volume is now around 1.3 million CHF per year. According to the Since the first commissioning flowed Solothurn newspaper around 11 million CHF to the IT service, without ever other providers were allowed to submit competitive tenders or awarding of the IT project would have been publicly advertised. After this procedure was made public, the following questions are the focus of interest here:
- Ran the procurement of the IT project permitted overlooking the applicable provisions of the Public Procurement Law?
- What demands does the public procurement law on IT procurement and what has to be considered?
Permissible IT project?
From the viewpoint of public procurement law, the actions of Solothurn management raises several questions. First guesses suggest that the procurement of the IT project is carried out without complying with the prescribed procedure. The subsequent extension of the contract also did not lead to an alert. According to media reports, orders totaling CHF 11 million were awarded directly to the IT service, without that this had to say in any way against other competitors. Overlooking the procurement law therefore ask the following questions:
- How is the value of the contract correctly determined or what is the total value of the order?
- If there is a contract of associated or could this be divided?
- When should an order be issued by private treaty or what other methods are available and when which procedure applies?
- Up to what extent follow-up orders to be issued without a tender or When must a new tender?
Specifications and questions of public procurement law
The public procurement law aims to promote effective competition. This can be achieved only if all competitors are treated equally and no supplier is discriminated. The offeror must be treated equally in all stages of the procurement procedure. The authority must also perform the procedure so that it is understandable (transparent). Equal treatment and transparency, therefore, provide the guidelines in the preparation of tender documents, in the evaluation of offers and also in the course of further cooperation represents, especially in follow-up orders, as in this case.
Correct freehand award?
The allocation process takes place according to certain rules of procedure. The choice of procedure is dependent on the sums (“threshold”). Put simply: “The higher the value the more demanding the process” . The processes are more or less uniformly throughout Switzerland even if the federal government and cantons each have their own laws (see. Art 13ff PPA.. ; type VII CAP. ). In the canton of Solothurn, for example, the following regulations apply to service contracts (. Cf. apply § 12ff Submission Act Kt SO.. ):
- Open procedure : The order must be publicly advertised from a value of CHF 250,000. All interested persons are invited to submit an offer.
- Selective procedure : Again, the order from CHF 250,000 must be advertised publicly, what company can make known their interest. In a second step, selected candidates are invited to submit a bid.
- Invitation method : From a volume of CHF 150,000, the Authority different candidate should invite input to make an offer (at least three). It selects from the received offers.
- Discretionary procedure : The competent authority may an order under CHF 150,000 awarded directly to a vendor. Direct awards than 150’000 CHF are only allowed in exceptional cases (urgency, technical features, follow-on contract as an exclusive terminal solution, research project, etc.). Corresponding exception clauses are applied restrictively.
In such a derogation, the Department of Finance appointed pursuant Solothurn newspaper. It understood the additional order is placed with the IT service provider as a follow-up order for the initial assignment of 2002. After that, “services to replace, supplement or extension services already rendered” would namely not be publicly advertised. This possibility makes the cantonal Submission Act actually open, it restricts but again strongly a. It is required that “Consequently the interchangeability is only granted with already existing equipment or services”. Meanwhile, the Department of Finance has acknowledged that there is little compelling factual connection between the contracts and the exemption clause therefore not likely to be applied.
Basic mission – Follow-up order – total value of the contract – a legal assessment
Related orders must always be advertised as such. The total volume, including follow-up orders and options, is used to calculate the contract value (“threshold”) prevail. Any follow-up orders must be in reasonable proportion to the basic contract. For multi-year contracts with a fixed period, the total value will prevail. If no specific maturity agreed, the contract value calculated for four years. It should be noted that a number of cantonal courts require the contracting authority, however, to indicate from the outset a maximum duration of the term contract, after which again must be a new award of a contract (order of magnitude five or six years and determine on an individual basis). It’s about other suppliers not unreasonably long excluded from the competition. Time for an indefinite period contracts are then not permissible. If a competitor established such a “continuous contract situation”, he may request that this procurement business is advertised new publicly on the earliest possible date.
In the case of the Solothurn cantonal administration, however, not only the original order was extended several times and by private treaty for years, but the volume of orders is also disproportionately increased. The procurement law was thus clearly violated.
What about privacy?
In addition to questions about the Procurement Law to address questions of data protection. Passed are personal data for processing to third parties, is order data processing. Overlooking the data protection law, this type of processing appears additionally explosive because it is an American subsidiary at the service provider. It could, accepted the server of the IT service subject in the United States, be at best a disclosure of personal data abroad. Such permitted only under certain conditions are met (mainly dependent on a valid consent of the individual). An aggravating factor is that the United States does not have adequate data protection ( no safe harbor equipped), which is why a permissible Datenbearbeitung- and disclosure is additionally dependent on special safeguards. In the absence of concrete evidence, however, this article looks not with data protection issues. Certainly will provide at a later date the opportunity to respond to data protection aspects of IT management by the public sector.