May a contracting authority request products in a pricing sheet by specifying particular brands and model numbers? The Dutch Committee of Procurement Experts recently issued an opinion on this question.
In a recent tender procedure, a bidder noticed that the contracting authority requested equipment of a specific brand and model. Not only was this equipment outdated, but alternatives also appeared to be unacceptable. The bidder raised critical questions on this point during the Q&A (Nota van Inlichtingen).
In its response, the contracting authority maintained its request for the specified products, but added the phrase “or equivalent.” However, it remained unclear whether alternatives would indeed be accepted, and the bidder felt sidelined. Completing the pricing sheet on the basis of the requested products would, so it seems, not have resulted in a winning bid.
The Dutch Committee of Procurement Experts held that a contracting authority may, in principle, not specify brands and model numbers on the pricing sheet (see Opinion 755, Complaint Part 1):
Only in exceptional circumstances where such specification is objectively justified is this permissible:
“A reference as referred to in Article 2.76(3) of the Dutch Public Procurement Act 2012 may be justified by the subject matter of the contract, if it concerns a situation in which the requirement to use a product of a particular brand or type unavoidably arises from the subject matter of the contract (cf. CJEU 16 January 2025, DYKA Plastics, C-424/23, ECLI:EU:C:2025:15, para. 53). In the Committee’s view, the contracting authority has not sufficiently explained why it would be unavoidable that the equipment to be supplied must necessarily be of a particular brand and type. Consequently, the references do not appear to be justified by the subject matter of the contract.”
The contracting authority’s argument that compatibility with the “installed base” was required was found insufficient. The Committee concluded that it was nevertheless possible to arrive at a precise and comprehensible description of the subject matter of the contract without requesting specific products.
In short, the contracting authority was not permitted to structure the request in this way. It should either have specified the requirements in technical terms or provided a stronger justification as to why this was not possible for this particular contract.
If you have any questions, please feel free to contact Mr. Menno de Wijs or Mr. Sonja Geldermans.
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