Wednesday, 18 February 2009

EU procurement law: Technical specifications (II)

Article 23(1) of the Procurement Directive 2004/18/EC lays down the obligation for the contracting authority to set out the technical specifications as defined in point 1 of Annex VI in the contract documentation:


CHAPTER IV
Specific rules governing specifications and contract documents

Article 23
Technical specifications

1. The technical specifications as defined in point 1 of Annex VI shall be set out in the contract documentation, such as contract notices, contract documents or additional documents. Whenever possible these technical specifications should be defined so as to take into account accessibility criteria for people with disabilities or design for all users.



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Public works contracts

Annex VI Definition of certain technical specifications distinguishes between public works contracts and public supply or public service contracts.

Therefore we look at public works contracts separately:




For the purposes of this Directive:

1. (a) ‘technical specification’, in the case of public works contracts, means the totality of the technical prescriptions contained in particular in the tender documents, defining the characteristics required of a material, product or supply, which permits a material, a product or a supply to be described in a manner such that it fulfils the use for which it is intended by the contracting authority. These characteristics shall include 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. They shall also include rules relating to design and costing, the test, inspection and acceptance conditions for works and methods or techniques of construction and all other technical conditions which the contracting authority is in a position to prescribe, under general or specific regulations, in relation to the finished works and to the materials or parts which they involve;

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Public supply or service contract

For public supply or service contracts point 1(b) of Annex VI lists the required technical specifications for the purposes of the Procurement Directive 2004/18/EC slightly differently from public works contracts:



For the purposes of this Directive:

(b) ‘technical specification’, in the case of public supply or service contracts, means a specification in a document defining the required characteristics of a product or a service, such as quality levels, environmental performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, use of the product, 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 processes and methods and conformity assessment procedures;


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Hierarchy of standards

Insofar as technical standards apply, Article 23 of the Procurement Directive introduces a hierarchy of standards ─ order of preference ─, which leads us to the definitions contained in points 2 to 5 of Annex VI:



2. ‘standard’ means a technical specification approved by a recognised standardising body for repeated or continuous application, compliance with which is not compulsory and which falls into one of the following categories:

— international standard: a standard adapted by an international standards organisation and made available to the general public,

— European standard: a standard adopted by a European standards organization and made available to the general public,

— national standard: a standard adopted by a national standards organization and made available to the general public;

3. ‘European technical approval’ means a favourable technical assessment of the fitness for use of a product for a particular purpose, based on the fulfilment of the essential requirements for building works, by means of the inherent characteristics of the product and the defined conditions of application and use. European technical approvals are issued by an approval body designated for this purpose by the Member State;

4. ‘Common technical specification’ means a technical specification laid down in accordance with a procedure recognised by the Member States which has been published in the Official Journal of the European Union;

5. ‘technical reference’: any product produced by European standardisation bodies, other than official standards, according to procedures adopted for the development of market needs.


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We should now have the tools at hand to begin looking at the Directive’s rules on the use of technical specifications in coming blog posts.


Ralf Grahn