Overview
This regulation states that the technical specifications, establishing the characteristics required of the works, services or supplies to be procured, should be set out in the procurement documents.
In the case of works, the technical specifications should define any characteristics specific to the intended use of the works being procured (such as rules relating to design, costing, testing and levels of environmental / climate performance). Any specific characteristics should also be defined where the procurement relates to services or supplies (such as quality levels, environmental and climate performance levels).
In the case of any public contract, the technical specifications may also specify:
- any required processes, methods of production or provision of the works, supplies or services to be procured, and
- whether the transfer of intellectual property rights will be required.
Contracting authorities may choose to formulate technical specifications in a number of ways, including:
- in terms of performance or functional requirements (provided that the parameters are sufficiently precise to allow suppliers to determine the subject-matter of the contract and to allow contracting authorities to award the contract)
- by reference to a recognised standard or an equivalent (for example, national standards, common technical specifications or international standards), or
- a combination of (1) and (2).
The regulation restricts contracting authorities’ ability to formulate technical specifications in a manner that refers to a specific make, source or process which characterises the products or services provided by a specific supplier, or to trademarks, patents, types or a specific origin or production with the effect of narrowing the available market. Such reference is permitted in exceptional circumstances however, provided that the specifications clearly identify that equivalents will be permitted.
Where the relevant works, supplies or services are intended for use by the general public, the technical specifications should take into account accessibility criteria for disabled persons or design for all users.
Regulation 42 also provides that contracting authorities should ensure that the formulation of technical specifications does not have the effect of creating unjustified obstacles to the participation of suppliers in the procurement.