Can a contracting authority require the use of a specific material in a public tender? The European Court provides a clear answer: only if there is truly no alternative. In all other cases, the phrase 'or equivalent' must be included.
In a tender for sewer works, ceramic pipes were made mandatory for wastewater and concrete pipes for rainwater. A plastic pipe manufacturer felt excluded: their products were simply not eligible. As a result, they had no chance of winning the contract. The manufacturer took the matter to court, which referred preliminary questions to the Court of Justice of the EU.
The Court answered the questions in light of Article 42 of the Procurement Directive (known in the Netherlands as Article 2.75 of the Public Procurement Act), which defines what is permissible in terms of (technical) specifications.
The Court of Justice of the European Union emphasized that technical specifications must not create unjustified barriers to competition. Only when the use of a specific material is inextricably linked to the subject matter of the contract may a contracting authority mandate that material.
In all other cases, the specification must allow for equivalence. In other words: the tender documents must either list multiple materials with the addition “or equivalent,” or—perhaps even better—not mention any specific material at all. This prevents the unjustified exclusion of bidders offering alternative, potentially innovative, materials.
For questions, please contact mr. Menno de Wijs or mr. David Wenniger.
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