Topics: Federal Administrative Judge, public procurement, procurement law, awarding law, PPA, career, EU, sustainability, corruption, career tips, speaker, lecturer, Bern University of Applied Sciences, Federal Administrative Court.
Information about the person on Weblaw People: Marc Steiner
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Good morning Mr. Steiner, we look forward to learning more about your work. Could you please briefly describe your professional career?

Actually, from the perspective of my originally planned curriculum vitae, law is somewhat of an accident. I was supposed to become a literary scholar or a high school teacher for German and ancient languages. A successful disciplinary complaint against a military disciplinary sanction led me to consider a different use of language as desirable. I still believe that literary scholars, lawyers, and theologians use methods that are more similar to each other than representatives of different disciplines would think. Perhaps this approach saved me from experiencing law as "chewing sawdust" (Franz Kafka).

And how did you become a federal administrative judge?

After an assistant position at the  University of Basel , which I left because I couldn't motivate myself to write a doctoral thesis, I ended up at the Administrative Court of the Canton of Aargau. There, the question was asked who was interested in a new subject. My later supervisor, Administrative Judge Elisabeth Lang, volunteered for public procurement law, which gave my life a decisive turn. Before that, I was more focused on public international law, with elective courses taught by Prof. Luzius Wildhaber. The mix of economic administrative law and public international law also led to integrating arguments from international trade law and European law, which helped me a lot. Looking beyond one's own field is a very important aspect in a career in business law anyway.

You are considered a leading expert in procurement law. What sparked your passion for this area of law?

This could also be a disadvantage because especially members of electoral bodies then think that I can't do anything else. However, connoisseurs know that I was a district court president and do not only earn my living with procurement cases at the  Federal Administrative Court.

I only became known because, during the procurement law reform phase, I tried to speak a language that not only lawyers understand. - Marc Steiner

Anyway, public procurement has fascinated me because it's a very special mix. This is because the state regulates itself with procurement law (unlike antitrust and financial market law), so the contracting authority side. At the same time, it's still classic economic administrative law because public consumer choice, due to its significant leverage, is naturally also economy design in terms of a sum of incentives. And the truly leading experts are, of course, the well-known professors Hans Rudolf Trüeb and Martin Beyeler, etc., in German-speaking Switzerland. I only became known because, during the procurement law reform phase, I tried to speak a language that not only lawyers understand.

What does your typical workday look like?

I try to juggle my various jobs. First of all, I have to thank the  Federal Administrative Court  for offering such part-time positions. Then, I hold a teaching position at the  University of Applied Sciences Bern  as a side job, and finally, there's the lecturing activity, which is declared to the tax authorities as independent secondary income.

A Danish colleague once jokingly said that with the way I do my job, I wouldn't survive for more than 14 days in Southern Italy. - Marc Steiner

But when you mention the judge position, in the morning, it's important to react to the incoming mail and especially to take the right measures with newly received appeals. As coordinator of public procurement, I submit requests for the allocation of new cases. Based on this, the court's presidency decides whether to activate the allocation computer, the so-called Bandlimat, or, for example, whether to allocate a case by hand in exceptional cases due to its connection with already pending cases. If I get the case myself, a decision must be issued on the same day regarding the superprovisional requests. This regularly means a "temporary construction stop" for the procurement agency. In other words, as a procurement judge, you don't really make yourself popular with the Federal Council and the federal administration. A Danish colleague once jokingly said that with the way I do my job, I wouldn't survive for more than 14 days in Southern Italy.

What is a coordinator?

When the Federal Administrative Court was founded, the prevailing opinion in our court was that every administrative lawyer who masters administrative procedural law can be deployed in any administrative discipline. In other words, the specialists shouldn't consider themselves so important. Fortunately, role models like today's federal judges Michael Beusch and Thomas Stadelmann always told us that this was an outdated view. We can only keep up with the highly specialized preceding courts and economic law firms if we also specialize ourselves. From this realization, we created areas of expertise within Court II as part of a revision of the court's regulations, which are led by a member of the court's presidency and supervised by a coordinator. The most delicate task of these domains of expertise is to ensure coordination of jurisprudence through lateral "leadership".

The new Federal Act on Public Procurement (PPA) has now been in force for 3 years. What is your assessment of its impact?

In my not entirely impartial assessment, the procurement law reform is a real success.  The revised procurement law - an appreciation - Bauenschweiz  quality competition, innovation, and sustainability are the key concepts. Thanks to the parallel revision of the PPA and the Inter-Cantonal Agreement on Public Procurement (IVöB), essentially the same rules now apply (finally!) to the federal government, cantons, and municipalities. Not all cantons have joined the IVöB yet, but since it also applies in the canton of Zurich with effect from October 1, 2023, it's like a perceived point of no return for procurement law reform.

Some procurement agencies are still moving forward with the reform objectives with the handbrake on, despite tailwind. But there are implementation levers for this. Firstly, procurement strategies, secondly, industry dialogue, and thirdly, monitoring thanks to "big data" in the area of public procurement. For example, it's easy to analyze which procurement agency weights the price how highly in which procurement. And when everyone realizes how easy this is, then the political debate begins about who moves and why, and who doesn't move and why.

In implementation, from my observation, we are less ambitious than Germany and Austria. - Marc Steiner

Sustainability plays a central role in modern procurement law. How do you assess Switzerland's position in this area?

The new procurement law is very European-inspired, and European procurement law (2014 directives) is in turn very progressive. During a certain phase of the reform – as long as it ran parallel to the discussion of the Institutional Agreement CH-EU – it wasn't advisable to loudly say that we essentially autonomously follow European regulatory logic. But it's true nonetheless. That's why it's important, where our law is based on European regulation, to also consider the case law of the European Court of Justice in Luxembourg. In implementation, from my observation, we are less ambitious than Germany and Austria. That's why I occasionally have the fun of inviting actors from neighboring countries to show our audience what would be possible with the appropriate political will. For this, the Germans envy us for the successful harmonization. It used to be said, "Tu felix Austria!" But now, we're not bad in this area either.

So the EU as a shining example?

The world isn't that simple. Those who followed Ursula von der Leyen's campaign for EU Commission President quickly realized that, in her opinion, the EU now has other problems than the "Green Deal," which was the main topic during the last campaign.

Therefore, it's important to defend the "Green Economy" concept in Switzerland as in the EU with all our might because the argument is repeatedly made that there are currently other priorities. In this respect, for example, I am very happy about the climate law, which was clearly accepted by the people, obligating the public sector to take a model role, and the Swiss circular economy package, which ideally complements the procurement law reform.

You regularly participate as a speaker at conferences of all kinds. Who is your audience?

That is probably a trademark of my curriculum vitae, that I learned to speak to non-lawyers because of the procurement law reform. And then I also address topics other than public procurement. One of my recent inputs at the  University of Applied Sciences Bern  was about the mentality of the public sector and interdisciplinarity. The most original presentation was certainly about the difference between the Last Judgment and earthly justice. And a few weeks ago, I spoke in front of an audience with the author of a book about the role of intellectuals in the present. But even in the field of public procurement, I go against the grain. For example, on my agenda, the conference of the infrastructure construction association at the KKL Lucerne is a more important event than legal conferences on procurement law. And the further education offerings of the Bern University of Applied Sciences are aimed at buyers, not procurement lawyers. Only if we involve this audience can we make a real transformative experience out of the procurement law reform. And yet, it is possible at the same time to participate as a project partner in a National Research Fund research project, thus setting a research focus. I'm actually quite happy with my mixed bag of activities.

You are involved as an advisor to Transparency International against corruption in public procurement. Which areas are susceptible to corruption in Switzerland?

The entire public procurement sector is susceptible to abuse of office and corruption. The  Federal Criminal Court  in Bellinzona occasionally cites relevant literature on procurement law. "Good governance" is consequently an important goal of procurement law reform. However, scientific interest in this topic remains modest. The  publication  by Elisabeth Lang and myself on corruption in public procurement is one of the least cited titles on ResearchGate and GoogleScholar. And if you ask in Switzerland for specialized literature on defense procurement, there is even more of a gaping void. But apparently, this is intended.

What advice would you give to law students interested in a career in administrative law or procurement law?

So in an average law degree, procurement law is not covered in my observation. (Some schools, which here set an accent as avant-garde, confirm the rule as an exception.) Despite an annual procurement volume of over 40 billion, it is still a classic niche discipline. So I would especially advise those who have already come into contact with competition law, for example, that there is a good reason why competition law, state aid law, and procurement law are taught together in European economic law. State aid law will become just as important in the near future as it is for public procurement. And: Interface knowledge is invaluable. Commercial lawyers know that a mix of intellectual property and competition law competences is always welcomed. The same applies, of course, to the intersection between competition law and procurement law.

Success is seen far too narrowly by many colleagues due to lack of imagination. - Marc Steiner

But your question rightly refers also to public law in general. If you, dear law students, believe that the public interest – to paraphrase Aristotle – is more than the sum of all parts or all lobbying efforts, then you will sustainably enjoy this field. The state is not a business but an organization that aims to live up to values. Being a cynic is no fun, especially not in the judiciary. A career in the judiciary cannot be planned any more than an academic one. But it definitely makes sense to explore a court from the inside as a court clerk. I myself have seen many courts from the inside, including the Federal Court (as a court clerk) and the Court of Justice in Luxembourg (two internships). And: Don't listen to others! I was seriously told back then that an internship at the CJEU was not desirable because it would not be credited for the attorney's license in Basel-Landschaft. Success is seen far too narrowly by many colleagues due to lack of imagination. If I had wanted to live by this maxim, I would have simply had to wait for retirement from the moment it became clear, particularly due to my high 'bird of paradise' quotient, that I would not become a federal judge, member of the court leadership, or court president. Conclusion: Make yourself a brand! Not desirable is a resume that shows, even after many years of professional experience, that you still don't know what you want. You've made it when you feel how the seemingly erratic building blocks of your resume turn into a sphere. Not the biggest, but a beautifully round sphere is the goal.

Thank you very much for the exciting insights into the world of procurement law and the Federal Administrative Court. We wish you all the best!

_{Translated by AI}