Procurement Law: What applies in case of contradictions between the simap tender notice and the tender documents?

In decision III 2025 33 of 31 July 2025, the Administrative Court of the Canton of Schwyz (VGer SZ) addressed the question of how to handle contradictions between a tender published on simap and the corresponding tender documents. The decision is highly relevant, as such issues regularly arise in practice.

Background

In November 2024, the municipality of Wollerau issued a contract notice. In the simap tender, alternative contractor bids were explicitly excluded, but these were explicitly allowed in the detailed tender documents (clear contradiction).

A bidder who had submitted both a basic and an alternative offer did not receive the contract award and filed a complaint.

Decision of VGer SZ

According to the ruling of the VGer SZ (only in German), in cases of contradictions regarding the admissibility of alternative contractor bids, the tender documents take precedence, not the simap tender notice. This is justified by the fact that the simap notice primarily serves as a brief informational summary, while the tender documents form the basis for preparing a bid.

Since the complainant’s alternative bid was not considered in the procurement process, the contract award was annulled and the case was referred back for re-evaluation.

Classification

The decision provides a welcome guideline for dealing with contradictions in tender documents. Nevertheless, a considerable legal uncertainty remains: in a similar case, the Administrative Court of Vaud (VGer VD) (only in French) held that the simap notice takes precedence over the tender documents (cf. MPU.2018.0028 of 1 April 2019). In that case, alternatives were explicitly excluded in the tender notice, while the tender documents did not comment on this.

To ensure legal certainty and avoid disputes, contracting authorities should aim to make tenders as contradiction-free as possible in practice. Bidders should carefully review the documents from the outset and, in case of uncertainty, promptly undertake legal clarifications and, if necessary, additional measures (e.g., inquiries or filing a complaint).

The VGer SZ decision can be found here (only in German).

The VGer VD decision can be found here (only in French).