The Defence and Security Public Contracts Regulations 2011

PART 2 U.K. TECHNICAL SPECIFICATIONS

Technical specifications in the contract documents U.K.

12.—(1) In this regulation—

“common technical specification” means a civil 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;

“defence materiel specifications” means a specification adopted by the Ministry of Defence in relation to a specific item of defence materiel, setting out all the technical requirements for that item together with the procedures necessary to determine whether those requirements have been met and which is not a defence standard;

“defence standard” means a technical specification the observance of which is not compulsory and which is approved by a standardisation body specialising in the production of technical specifications for repeated or continuous application in the field of defence;

“European standard” means a civil standard adopted by a European standards organisation and made available to the general public;

[F1 “European Technical Assessment” means the documented assessment of the performance of a construction product, in relation to its essential characteristics, in accordance with the relevant European Assessment Document as defined in point 12 of Article 2 of Regulation (EU) No 305/2011 of the European Parliament and of the Council of 9 March 2011 laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC;]

“international standard” means a civil standard adopted by an international standards organisation and made available to the general public;

“British standard” means a civil standard adopted by a British standards organisation and made available to the general public;

“recognised bodies” means test and calibration laboratories and certification and inspection bodies which comply with applicable European standards F2 ...;

“standard” means a technical specification approved by a recognised standardisation body for repeated and continuous application, compliance with which is not compulsory and which is an international standard, a European Standard or a British standard;

“technical reference” means any product produced by European standardisation bodies, other than official standards, according to procedures adopted for the development of market needs; and

“technical specifications” means—

(a)

in the case of a services contract or a supply contract, a specification in a document defining the required characteristics of materials, goods or services, such as quality levels, environmental performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, use of the product, its safety or dimensions, including requirements relevant to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions, production methods and procedures and conformity assessment procedures; and

(b)

in the case of a works contract, the totality of the technical prescriptions contained, in particular, in the contract documents, defining the characteristics required of the work, works, materials or goods, which permits the work, works, materials or goods to be described in a manner such that it fulfils the use for which it is intended by the contracting authority and these characteristics shall include—

(i)

levels of environmental performance, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling and production processes and methods;

(ii)

rules relating to design and costing, the test, inspection and acceptance conditions for work or works and methods or techniques of construction; and

(iii)

all other technical conditions which the contracting authority is in a position to prescribe, under general or specific regulations, in relation to the finished work or works and to the materials or parts which they involve.

(2) Where a contracting authority wishes to lay down technical specifications which must be met by—

(a) the services to be provided under a services contract and the materials and goods used in or for it,

(b) the goods to be purchased or hired under a supply contract, or

(c) the work or works to be carried out under a works contract and the materials and goods used in or for it,

it shall specify those technical specifications in the contract documents.

(3) A contracting authority shall ensure that technical specifications afford equal access to economic operators and do not have the effect of creating unjustified obstacles to the opening up of public procurement to competition.

(4) Subject to—

(a) technical requirements (including those related to product safety) which are compulsory in the United Kingdom, or

(b) technical requirements to be met by the United Kingdom under international standardisation agreements in order to guarantee the interoperability required by those agreements,

and to the extent that those requirements are compatible with EU obligations, a contracting authority must define the technical specifications required for a contract in accordance with paragraph (5), (6), (7) or (8).

(5) A contracting authority may define the technical specifications referred to in paragraph (4) by reference to technical specifications in the following order of preference—

(a) British standards transposing European standards,

(b) [F3 European Technical Assessments],

(c) common technical specifications,

(d) British standards transposing international standards,

(e) other international standards,

(f) other technical reference systems established by the European standardisation bodies, or, in the absence of such systems, by reference to the following technical specifications—

(i) other British standards;

(ii) British technical approvals; or

(iii) British technical specifications relating to the design, calculation and execution of the work or works and use of the products,

(g) civil technical specifications stemming from industry and widely recognised by it, or

(h) British defence standards and defence materiel specifications similar to those standards,

and each reference to a technical specification made in accordance with this paragraph shall be accompanied by the words “or equivalent”.

(6) A contracting authority may define the technical specifications referred to in paragraph (4) in terms of performance or functional requirements (which may include environmental characteristics) provided that the requirements are sufficiently precise to allow an economic operator to determine the subject of the contract and the contracting authority to award the contract.

(7) A contracting authority may define the technical specifications referred to in paragraph (4) by defining performance and functional requirements as referred to in paragraph (6) with reference to the technical specifications referred to in paragraph (5) as a means of presuming conformity with such performance or functional requirements.

(8) A contracting authority may define the technical specifications referred to in paragraph (4) by reference to technical specifications referred to in paragraph (5) for certain characteristics and by reference to performance or functional requirements referred to in paragraph (6) for other characteristics.

(9) Where a contracting authority defines technical specifications as referred to in paragraph (5), it shall not reject an offer on the basis that the materials, goods or services offered do not comply with those technical specifications if an economic operator proves to the satisfaction of the contracting authority by any appropriate means that the one or more solutions that economic operator proposes in its tender satisfy the requirements of those technical specifications in an equivalent manner.

(10) Where a contracting authority defines technical specifications in terms of performance or functional requirements as referred to in paragraph (6), it shall not reject an offer for materials, goods, services, work or works which complies with—

(a) a British standard transposing a European standard,

(b) a [F4 European Technical Assessment],

(c) a common technical specification,

(d) an international standard, or

(e) a technical reference system established by a European standardisation body,

if those technical specifications address the performance or functional requirements referred to by the contracting authority and the economic operator proves in its tender to the satisfaction of the contracting authority by any appropriate means that the work, works, materials, goods or services meet the performance or functional requirements of the contracting authority.

(11) Where a contracting authority lays down environmental characteristics in terms of performance or functional requirements as referred to in paragraph (6), it may use the detailed technical specifications, or if necessary, parts of the technical specifications, as defined by European, national or multi-national eco-labels or by any other eco-label, provided that—

(a) those technical specifications are appropriate to define the characteristics of the materials, goods or services that are the object of the contract;

(b) the eco-label requirements are drawn up on the basis of scientific information;

(c) the eco-label is adopted using a procedure in which all stakeholders, such as government bodies, consumers, manufacturers, distributors and environmental organisations, are able to participate; and

(d) the technical specifications are accessible to any party interested.

(12) A contracting authority may indicate in the contract documents that the materials, goods or services bearing the eco-label are presumed to comply with the technical specifications laid down in the contract documents and shall accept any other appropriate means of proof that the materials, goods or services comply with those technical specifications.

(13) The term “appropriate means” referred to in paragraphs (9), (10) and (12) includes a technical dossier of a manufacturer or a test report from a recognised body.

(14) A contracting authority shall accept certificates from recognised bodies established in other member States when considering whether a tender for a contract conforms with the technical specifications laid down by the contracting authority in accordance with paragraph (2).

(15) Subject to paragraph (16), a contracting authority shall not lay down technical specifications in the contract documents which refer to—

(a) materials or goods of a specific make or source or to a particular process, or

(b) trademarks, patents, types, origin or means of production,

which have the effect of favouring or eliminating particular economic operators.

(16) Exceptionally, a contracting authority may incorporate the references referred to in paragraph (15) into the technical specifications in the contract documents, provided that the references are accompanied by the words “or equivalent”, where—

(a) the subject of the contract makes the use of such references justifiable; or

(b) the subject of the contract cannot otherwise be described by reference to technical specifications which are sufficiently precise and intelligible to all economic operators.

Textual Amendments

F1 Words in reg. 12(1) substituted (29.11.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1450), regs. 1(2), 2(3)(a)

F2 Words in reg. 12(1) omitted (26.2.2015) by virtue of The Public Contracts Regulations 2015 (S.I. 2015/102), reg. 1(2), Sch. 6 para. 19(7)

F3 Words in reg. 12(5)(b) substituted (29.11.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1450), regs. 1(2), 2(3)(b)

F4 Words in reg. 12(10)(b) substituted (29.11.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1450), regs. 1(2), 2(3)(c)

Variants U.K.

13.—(1) Where a contracting authority intends to award a contract on the basis of the offer which is the most economically advantageous in accordance with regulation 31(1)(a), it shall indicate in the contract notice whether or not it authorises economic operators to submit offers which contain variants on the requirements specified in the contract documents and a contracting authority shall not accept an offer which contains a variant without that indication.

(2) Where a contracting authority authorises a variant in accordance with paragraph (1) it shall state in the contract documents the minimum requirements to be met by the variants and any specific requirements for the presentation of an offer which contains variants.

(3) A contracting authority shall only consider variants which meet its minimum requirements as stated in the contract documents in accordance with paragraph (2).

(4) A contracting authority shall not reject an offer which contains variants on the requirements specified in the contract documents on the ground that—

(a) where it intends to award a services contract, the offer would lead to the award of a supply contract; or

(b) where it intends to award a supply contract, the offer would lead to the award of a services contract.