Q&As

What are the rules on referring to brands within technical specifications in the context of a public procurement exercise for equipment installation and associated works?

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Produced in partnership with Denis Edwards of Normanton Chambers
Published on LexisPSL on 27/11/2019

The following Public Law Q&A produced in partnership with Denis Edwards of Normanton Chambers provides comprehensive and up to date legal information covering:

  • What are the rules on referring to brands within technical specifications in the context of a public procurement exercise for equipment installation and associated works?

What are the rules on referring to brands within technical specifications in the context of a public procurement exercise for equipment installation and associated works?

For the purpose of this Q&A we have assumed that this is an above-threshold procurement under the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102.

PCR 2015, SI 2015/102, reg 42 permits contracting authorities to set out technical specifications with which bids for public contracts must comply. However, such specifications should not be a disguised means of protectionism or favouritism. In other words, the use of specifications or ‘brands’ must not be used to create obstacles to competition or derogate from a lawful public procurement exercise in accordance with the rules.

As regards the performance or functional requirements of goods, such as boilers, the technical specifications must be set out precisely and clearly. However, a technical specification must not refer to a ‘specific make’, patent, trademark (or brand) where the effect of that is to prejudice certain potential bidders or products. Exceptionally, such a specific requirement of a ‘brand’ is permissible if the subject matter of the contract (in this case, purchase of boilers) cannot be precisely

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