Procurement Act 2023 Changing Landscape, Issue 6: Technical Specifications

Gowling WLG


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This bulletin, the latest in our changing landscape series on the Procurement Act 2023, looks at how the Act regulates the use of technical specifications in procurement procedures.
UK Government, Public Sector
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This bulletin, the latest in our changing landscape series on the Procurement Act 2023, looks at how the Act regulates the use of technical specifications in procurement procedures.

The current landscape

Technical specifications are descriptions of the characteristics of the goods, works or services which a supplier who has been awarded a public contract will be required to deliver. Technical specifications have to form part of the procurement documents and, in order to be successful, a solution offered by a bidder will need to meet the requirements set out in the specification.

For many years, the public procurement rules have included rules governing the content of technical specifications. Driven in large part by the need not to discriminate against suppliers from other EU member states (readers will remember that our existing public procurement regime is a legacy of the UK's former EU membership) and the requirement for authorities to recognise equivalence and not frame technical requirements too narrowly, the current rules require that technical specifications afford suppliers equal access to the procurement procedure, and do not have the effect of creating unjustified obstacles to the opening up of public procurement to competition.

While the current rules on technical specifications in public procurement (found in regulation 42 of the Public Contracts Regulations 2015) are quite flexible as to what can be worked into a technical specification, authorities are not permitted (unless the contract's subject-matter justifies it) to refer in their technical specifications to a specific make or source, or to a particular process which characterises the products or services provided by a specific supplier. Authorities are similarly prohibited from framing their specifications by reference to particular trademarks, patents, types or a specific origin or production where this would have the effect of favouring or eliminating certain suppliers or products. Authorities are only permitted to do either of these things on an exceptional basis – that is, where a sufficiently precise and intelligible description of the subject-matter of the contract is otherwise not possible - in which case the reference has be accompanied by the words "or equivalent".

This is understandable and desirable: authorities should not, unless it is justifiable as a means of articulating the requirement, insist on referring to a particular make or source of supply when equivalents would fulfil the contract's purposes just as well.

The new landscape

Turning to the Procurement Act, still expected to come into full force in October, similar themes around technical specifications are carried through and are seen in section 56 of the Act. While the language of the Act is subtly different from that of the current regime in some respects, we do not think that these differences will lead to the Act having any noticeably different practical effects as compared with the current regime.

In section 56 we again see an emphasis on authorities recognising equivalence, and not formulating their specifications by reference to a particular design, licensing model or description of characteristics in circumstances where they could appropriately refer to performance or functional requirements. The section prohibits references in specifications to a UK standard unless either (i) the standard adopts an internationally recognised equivalent, or (ii) there is no internationally recognised equivalent. If the procurement documents refer to a UK standard, they must provide that tenders which the contracting authority considers satisfy an equivalent standard from another state (or organisation of states) will be treated as having satisfied the United Kingdom standard.

Similarly, authorities must not ordinarily stipulate a particular trademark, trade name, patent, design or type, place of origin, producer, or supplier – unless the contracting authority considers it necessary in order to make its requirements understood. If these matters are referred to, the procurement documents must also provide that tenders which demonstrate equivalent quality or performance will not be disadvantaged. Strong parallels are therefore seen between the coverage of technical specifications by the current regime and the Act respectively: in essence, contracting authorities will not be allowed to specify their requirements by reference to trademarks, designs or other proprietary factors except where necessary in order to articulate their requirements more clearly and to aid bidders' interpretation of them in the procurement documents. In all cases, equivalence must be recognised.

Some might ask why the focus on recognition of equivalence, including equivalent international standards, persists as a key theme of the Act's rules on technical specifications in an era when the UK is no longer a member of the EU. It should not be forgotten that the Act imposes duties on contracting authorities towards "Treaty State" suppliers – effectively requiring the treatment of suppliers from other states with which the UK has a specified international trade agreement (and one relevant to public procurement) not to be any less favourable than that of UK-based suppliers. Schedule 9 to the Act lists those countries with which the UK has such agreement (the Act calls these "specified international agreements"); this list may grow as more such agreements are signed in future years. These include the 2020 UK-EU Trade and Cooperation agreement and, currently, twenty-three others.

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