The Public Supply Contracts Regulations 1991

PART II TECHNICAL SPECIFICATIONS

Technical specifications in the contract documents

8.  –

(1) In this regulation–

“common technical specification” means a technical specification drawn up in accordance with a procedure recognised by the member States with a view to uniform application in all member States and which has been published in the Official Journal;

“European specification” means a common technical specification or a British standard implementing a European standard;

“European standard” means a standard approved by the European Committee for Standardisation (“CEN”) or by the European Committee for Electrotechnical Standardisation (“CENELEC”) as a “European Standard (“EN”)” or a “Harmonisation Document (“HD”)” according to the Common Rules of those organisations;

“standard” means a technical specification approved by a recognised standardising body for repeated and continuous application, compliance with which is in principle not compulsory; and

“technical specifications” means the technical requirements defining the characteristics required of goods (such as quality, performance, safety or dimensions and requirements in respect of terminology, symbols, tests and testing methods, packaging, marking and labelling) so that the goods are described objectively in a manner which will ensure that they fulfil the use for which they are intended by the contracting authority.

(2) If a contracting authority wishes to lay down technical specifications which the goods to be purchased or hired under a public supply contract must meet it shall specify all such technical specifications in the contract documents.

(3) Subject to paragraph (4) below, the technical specifications in the contract documents relating to a public supply contract shall be defined by reference to any European specifications which are relevant.

(4) A contracting authority may define the technical specifications referred to in paragraph (3) above other than by reference to relevent European specifications if–

(a) the contracting authority is under an obligation to define the technical specifications by reference to technical requirements which are mandatory in the United Kingdom for the goods to be purchased or hired under the contract (but only to the extent that such an obligation is compatible with Community obligations);

(b) the relevant European specifications do not include provision for establishing conformity to, or it is technically impossible to establish satisfactorily that the goods to be purchased or hired under the contract do conform to, the relevant European specifications;

(c) definition by reference to the relevant European specifications would conflict with the application of Council Directive 86/361/EEC on the initial stage of mutual recognition of type approval for telecommunication terminal equipment(1) or Council Decision 87/95/EEC on standardisation in the field of information technology and telecommunications(2) or other Community obligations in specific service or goods areas;

(d) subject to paragraph (5) below, application of the relevant European specifications would oblige the contracting authority to acquire goods incompatible with equipment already in use or would entail disproportionate costs or disproportionate technical difficulties; or

(e) the project for which the goods to be purchased or hired under the contract are required is of a genuinely innovative nature for which use of existing relevant European specifications would be inappropriate.

(5) A contracting authority may only define the technical specifications other than by reference to relevant European specifications on the grounds specified in paragraph (4)(d) above where the contracting authority has a clearly defined and recorded strategy for changing over, within a set period, to European specifications.

(6) A contracting authority shall, unless it is impossible, state in the contract notice relating to the contract which of the circumstances specified in paragraph (4) above was the ground for defining the technical specifications other than by reference to European specifications, and shall in any event keep a record of this information which, if the Commission or any member State requests it, it shall send to the Treasury for onward transmission to the Commission or member State which requested it.

(7) In the absence of European specifications relevant to the goods to be purchased or hired under a public supply contract, the technical specifications in the contract documents may be defined by reference to the following standards (and, if they are so defined, preference shall be given to the following standards in the order in which they are listed)–

(a) British standards implementing international standards;

(b) other British standards; or

(c) any other standards.

(8) Subject to paragraph (10) below, the contract documents relating to a public supply contract shall not include technical specifications which refer to goods of a specific make or source or to a particular process and which have the effect of favouring or eliminating particular goods or suppliers.

(9) Without prejudice to the generality of paragraph (8) above, references to trademarks, patents, types, origin or means of production shall not be incorporated into the technical specifications in the contract documents.

(10) Notwithstanding paragraphs (8) and (9) above, a contracting authority may incorporate the references referred to in paragraphs (8) and (9) above into the technical specifications in the contract documents if–

(a) such references are justified by the subject of the contract, or

(b) the goods to be purchased or hired under the contract cannot otherwise be described by reference to technical specifications which are sufficiently precise and intelligible to all suppliers, provided that the references are accompanied by the words “or equivalent”.

(11) Where the goods to be purchased or hired under a public supply contract are to be the subject of a design competition, or where the supplier is permitted under the terms of the invitation to tender to submit tenders based on different technical specifications, the contracting authority shall not reject a tender on the ground that it has been drawn up by reference to different technical specifications from those used in the United Kingdom if the tender otherwise accords with the terms and conditions of the contract documents and the supplier submits with the tender the evidence necessary for examining the tender and provides such additional explanations as the contracting authority considers necessary.

(1)

OJ No. L217, 5.8.86, p.21.

(2)

OJ No. L36, 7.2.87, p.31.