Specifications, Selection, and Award criteria are unavailable toi. The onus is on the operator to demonstrate equivalence or non-availability of certificates in such eases ‘Technical Specifications 4.29, Technical specifications define the characteristics required ofa good, service, oF work. Theyatepresentinall procedures wich the exception of eompetiive dialogue and design contests, where the characteristic of solutions are instead proposed by Partcipans, In other procedures, ia tendee does not meet the minimum roquize- ‘ments se ou inthe technical specifications, c must be rejected. The caefal formulation ofpecfcaionsis therefore estenial, nd forms the core of mos pro- euurement documents. The rules on technical specifications often appeae to rlare ‘more closely to supply contacts than services r works, bus hey ate equally applic- able all three eypes of contact. Under the 2014 directives and thee predoces sors, technical specifceions may either be formulated by zeference to standard, technical assesment, or other technical reference systems i ktm of peor: mance o functional requirements or by some combination of thee approaches 4.30. The use of performance or outcome-based specifications is seen as a means of encouraging innovation and wider competition for contract, Instead of prescrib- ing inputs or the precise manner in which supplies, services, or works are t0 be provided, such specifications ocuson the outcome tobeachieved, normally accom= panied by minimum performance levels. The use of variants, whereby operatore ‘may propose alternative solutions to meee che contracting authority's minimum, ‘requirements, canalso encourage innovation and competition, Submission of vari nts may be either mandatory or optional, and venderers may be requited to submit 1 noo-variant bid alongside any variant." The authorization of vasiants must be indicated inthe contract notice, and the minimum requirements which they are to meet sated in the procurement documents, Variants are asessed against the same contract award criteria as non-vatiant solution, allowing the authority to determine which solution best meets its needs. Variants may be used, far exam= ple, ifan authority wishes to compare conventional diesel or petol vehicles with ltenative-fuelled, eletric or hybrid options: oF iFit wishes to compasea managed print sr ‘with conventional printing 4.31. Performance-based specifications and variants are particularly useful where the range of solutions available on che market is unknown or the authority wishes ¢o © Ac 5th) Pali Sector Distve; ad Art 765) Use Dict. The obligation vo «gectendes which do noe mee he eh pselicatens washighlghes by the Court n Case £24389 Comeaions Kingdom of Donnart Sorebael) [1993] ECRL-O3399 pars 37 ad Case C561! Nowocon Sand Rabel ErAS Rsbandueiosein Merde aon yecopoed, pars 579. 1 he Pb Sect Directs and Ar 64 Utes Dist, 0s EE anLe Tecbuical Specifications compare different service models or technologies —to determine their effect on cost or quality. However, in some cases, chey may simply pastpone the point at ‘which a decision needs ta be made, while adding to the complex of render aub- ‘mission and evaluation. For example, fan authority specifies thac i wishes to pur- ‘hase cleaning services and does not specify any of che inpucs (for example, person. days o hours) or methods to be applied, it may receives range of offers with very differeclevels of service provision. The sameis true in tender for vehicles—where unsuitable models may be proposed. The absence of derailed specifications or the inclusion of variants can prompe bidders to innovate, bu it may also mean they do not fully appreciate che authority's needs and preferences. In order to evaluate and clistinguish between tenders in terms of cast and quality, rhe contracting author- ‘ny wil rely on award criteria, the application of which ean become difficult where bids have been submitted based on different cost or delivery models. The use of performance-based specifications or variants should cherefore be accompanied by careful consideration of how the evaluation methodology will ke applied and bids compared Approaches to devising technical specications vary widely and are influenced 4.32 by the subjece mater ofthe contact, institutional, and navional practices. The overiding concern ofthe directives isto prevent technical specifications Being tse in a way which may discriminate agains certain operators ot unduly init competition. These ambitions ae shared by the rules on specifications stout in Artile X of the GPA: however, cere is one notable difference in thee Formala- tion, Whereas the directives alford pre-eminence to national standards eanspos- ing European standards, che GPA nacurlly prefers international standards! This appears ro crate a confi whore a render is sujooe wo both rims however in practice, itis key tobe resolved by the requirement to accep equivalents which apples under bah instruments The inchsion of environmental characteristics in «echnical specifications is also cxpliciely highlighted in the GPA. The opening up of European procurement markets under che GPA and bilateral trade agreements islkely co bring moze focus othe silcy of public authorities to include envcon- ‘mental and social equiementsin echnical specifications which gobeyond legally prescribed minima “The 2014 directives clarify that specifications may concern production proceses or 4.33 other stages ofthe lifecycle, aswell asthe transfer of intellectual property rights? © he 423) Pabie Secoe Dieses Ar 63) Utes Discs aod Ant (2b) GA. © he former proviso is secompanted by dhe exement tha prodction posse, ce may fom pat of eh speccaions even wheze sich Factors Jomo oem peo thelr ster ‘ubsence, provided shot they at inka och subjec mater the contact and preston icsvalue snd basin’ (Arr 42) Public Stor Dtestie. Todd che meaning of i starement one must saree the Commission former stance ening tensor proction process to mstraly alr the substance of what isbringpurchine, diseased aparsgrph 4.42 Etowand in Cape 7nd cones of envizonmensalspeibcaon 107 SSE aemer Specifications, Selection, and Award criteria ‘Anon-exhaustive listof characteristics which may beaddresed in technical specifica tions is sec out in Annex VII of che Public Secor Directive, Accesibilie eiera for petsons with disabilities must be included forall goods, services, or works which will be used by people. "The effect ofthese provisions isto confirm tha echnical specifi ‘ations may concem the toralty of characersties which define a partculte good, service, or work. Hovieve, there is one area in which uncertainty eemains regarding the permisible scope of specifications socal and labour conditions within the eupply chain, Unlile environmental characteristics, no mention is made oF socal character- ‘aces (other han accessibility for disabled users) in Arcee 42. Recial 99 ofthe Public Sector Directive provides thar: In echnical specifications contacting authorities can provide such social vequle= meses which dicey characrerse the producto service in question, sch as acces siiliy fr persons with dailies or desig for all srs, 4.34 Docs this preclude technical specifications which require payment ofa living wage, a air trade premium, ot observance of other scial conditions noc prescribed in legie- lation or colleccve agreements? The Commission has eequensly asserted that such marcers are best addressed in contract performance clauses—however, the Court in ‘Duc Coffe eld that they can aso be applied as awacd crceria, Ths may allow ch considerations tobe addressed effectively in many tenders; however, there isa good ‘eas to examine whether they may alo form parcof technical specifications. Award titra and contract performance clauses do nae necessarily form the bass For rjc tion of rendets, whereas non-compliance with specifications docs" Inclusion of a living wage provision, for example, only in award critela of contractcausee may eave ‘pen the possbilicy thar tenderer who does noe adequately efletthis equitement spring would be succes 4.35 The Court held in Dutch Cafe that conditions which relate to the acquisition by supplier of goods fiom the manufaceurer did nor meee the definition of recnical specifications under Directive 2004/18/EC.45 However, given tha this definition hes ‘now been changed to explcidy include factors which da not farm parcof the material substance ofthe final product or service, and which may relate wo methodsof provi aswell as production, an argument can be advanced that his includes social charac- teristics of the supply chain, such as fair ade criteria or payment of iving wage. In thecas of services, the conditions under which labour occurs maybe the only method ‘Where tener dos nae spond oo «patil aval eto, t-wlsinply flo stain rma undee tat exterins Une anima score as boce preset an opyoach cused a Below tay stl be de mast ecaomialy avanrageous ender, Corrs prormance cae 2ccoudngro Resi 104, conteutiaed bjaiverequtensthat harem mpacton thease Imentf tenders These rwo approaches may therefore belnnfcen oases: tlie soil Fequltements in he canst farendse. Case C368/10 Contmiion = Kingda of the Netra (Dac Calf, noc ye weported @ pnt 108, [eeTechnical Specifications ‘of provision. Further suppor for this postion is derived from the possibilty under the 2014 directives to refer co both environmental and social labels in techaical specifications. Social labels generally address supply chain citeia such as decent ‘wages and conditions of work, Advocate General Kokort made clear in her opinion in Dutob Caffe tha such considertions were linked t the subject matter of the con- ‘tract, provided they apply to the specific products or seevices being purchaced rather than the general corporate practices of a tenderer IF socal Inbels meet the othee ‘eqirements set out in Article 43 eating to eranaparency, they can now farm parcof ‘echnical specifiations,subject¢o an obligation to accept equivalents, Uncertainty regarding cheabileyoinssconlabourseandards or wagesabovelegel 4.26 iinima arose fom the afr case The case concerned a works concact which had been serminated by a German authority due to the sure oF a subcontractor to comply with minimum rates of pay set out ina collective agreement. Public suthorites were obligared under German la ro comply with such ageeements and to procure the compliance of their contactors end sub-coneractors. The case tamed on che compactly of this obligation withthe Posted Workers Ditective (PWD) and Article 49 ofthe Tiesty, on Fredom of esablishment.© The PWD requires chat where workers are posted from one Member Seat snocher, they must be gunrntced certain minimum eras and conditions of employment. The tinimam terms are those set out in laws, segulation, o administrative provi sions, swells chose contained in collective agreements which have been declared universally applicable, meaning they mus be observed by all undertakings in the geographical area and in the profession or industry concerned. The Court held thatas thelaw in question referred clletve agreements which werenot univer sally applicable and did not cel fx minimum wage rates, the authority was not nile w impose the higher rte of pay on posted workers" ‘The Coure in Rife emphasized chat imposing higher wage requitements on 4.37 posted workers had the potential toundermine the ompetiveadrantageof nder- takings based in lowersnage Member Seats and to impede che fre movernent ‘of services. The Court did not consider case lw arising under che procurement directives suchas Beenesand Nord Pas de Calai—uhich poin oa wider dcr sion over terms and conditions of employment inthe context of public contracts. (Citcism ofthis judgment has emphasized this omission as wel as the Court’s “Annex Il of che Puli Secror, pin fincas proton process nd method a any sage of thelifecylea the sup svc ia che deriton fehl pcan 2 rc 430 Publi Sertor Derive: and Ar Gt) ies Dect 4 ChseC-368/10 Dah Cf. Advocate Censtl’sopinion a pars W013, Case C 346/06 Dik afro Land Nndnahen Rife) 2000] ECR 0199, © Diretve 9677 EC of the European Patsmene and ofthe Cua af 16 December 196 ‘opening the posting ort ia the rsmevark ofthe provision eserves, 3 Case 3406 hie pars 24-35 109 EEE EEE EEE EEE EE EEE Ea a a eerea Specifications, Selection, anal Award criteria Failure to consider the equal cteatment implications where collective agreements are binding only on domestic contractors In Budesdruchori, the Court held thar a contacting authority could not reque compliance with minimam wage legislation on the part of subconcractorslacated in another Member State, while accepting that such a measure could in principle be justified based on the objec- tive of protecting employees and avoiding social dumping. The case concerned contract awarded by the City of Doremund for data entry services, in which the pplication ofthe minimum wage equirement was challenged by a bidder usinga Polish subcontractor. The Court found that the minimus wage requirement was disproportionate inasmuch as it applied only to public seeror contracts and bore 'o relation to the cost of living in other Member States, thus depriving them oF a competitive advancage. 4.38 However, the wording ofthe operative pat ofthe judgment is confined to cases in whieh a tenderer intends co carry outa public conceact by having recourse exclu sively co workers employed by subcontractor established ina Member Scat other than that 10 which the conteacting authorcy belongs”. This suggests that the stu ation would be differentifs contractor intends o rly in part ar wholly on workers in the Member Sate where minimum wage legislation ora collective agreement applies, provided itis universally applicable in accordance with the Riff judge ‘ment, Bindesdruckere itself only deals with cases of exeraterttoral application of ‘minimum wages. further case testing the limite of Rift was lodged with che Court in 2014. importantly, the 2014 directives now contain a specific ability for contracting authorities to reject tenders which do not comply with wage provi- sions or other labour conditionsenshrined in collective agreements (orn national, lions will have chesame efcr a technical specifications There is no explicit requirement thatthe collec- tiveagreements be universally applicable, alchough the recitals ro the directives do state that cis provision muscbe applied in conformity with EU law in general and Puropenn, or international law) meaning char such wt 5 See MeCridden,. (2011) The Rift Case and Pic Paocurerent in M. Cremona, Marke Deaton and Publi Seren he Eure Uni Osten Onto Ualvety Pre pp 17-48. MeCraden highligh the legal and poll backgsound tothe case bath wh Germany ana EUleehasllareherad union eston othe uling Hears tha the Conse i oc alequaey conser the eso he procuremen ctv and eleva casa ance ‘both the PAD and procurement dessa poll compromises bens the Tee) Sree and sci provections, the evo mast beacon qual ting a seslvag ese nhs Rages op 30-3). 2 Case C549719Bundesrctee GH v Stade Dordt ys eporc pots 31-3 % Case CA101 fgioPasGnbt¥ehCo KG 0 Sade Lanasleigedon 1 Maran 2O18 Theses ‘ns refered och Curt late equirements for comtato al beans pay ees !mininnonats ofp 0 popleerloyedon public cones and oma declarations thinciet dying the tender procedure Nofuginnt had been ued he vie wi 3 Ares 18() and 4) Public Setor Diener and Arts 362) and 61) Cites Dict, ‘Wher a ender abnoally low due non-compliance wth an applicabecollctiv greene, ris an obligation to rec under Ar 3) Public Seror Diteene and Av 0) Uae Directive no ‘iRES ee eee eee ee Award Criteria the PWD in particular so thecase lw on this will remain relevant. The wording ‘of the rules on contrac performance conditions has also changed, refering to the link tothe subjecemacter requirement rather than general compatibility with EU law, and expliciey including,‘employment-related considerations.*” The effect of these changes is considered in Chapter 5. In summary there are good reasons to consider thatthe 2014 directives allow 4.39 gate scape for addressing payment of fai wages and other Inbour conditions in echafcl specficaions as well as in award teria and contact performance clauses Ip order to comply with the rules on echaical specifications (end the “Treaty principles), cae must be taken 0 avoid anyformolaton which i dicectly or indie discriminatory aginst undertakings established in other Member Seaes. Arguably, however, where contractiog auchorties ace effectively bound by collective agreements or administrative practices mandating the application of chanced wages or employment conditions, including dhese in technical spec- fications affords » greater degre of transparency for ll bidders than inching them in contract performance clauses alone. I the application of such standards is teu vluncary, chen fe may be preferable eo adess chem in avard criteria, as thie affords the opportuniy to assess theix impact on other qualitative aspects of sendersand costs.