The Utilities Supply and Works Contracts Regulations 1992

PART II TECHNICAL SPECIFICATIONS

Technical specifications in the contract documents

11.—(1) In this regulation—

“common technical specification” means a technical specification drawn up in accordance with a procedure recognised by the member States with a view to uniform application in all member States and which has been published in the Official Journal;

“European specification” means a common technical specification, a British standard implementing a European standard or a European technical approval;

“European standard” means a standard approved by the European Committee for Standardisation (“CEN”) or by the European Committee for Electrotechnical Standardisation (“CENELEC”) as a “European Standard (“EN”)” or a “Harmonisation Document (“HD”)” according to the Common Rules of those organisations or by the European Telecommunications Standards Institute (“ETSI”) according to its own rules as a “European Telecommunications Standard (“ETS”)”;

“European technical approval” means an approval of the fitness of a product for a particular use, issued by an approval body designated for the purpose by a member State, following a technical assessment of whether the product fulfils the essential requirements for building works, having regard to the inherent characteristics of the product and the defined conditions of application and use as provided for in Council Directive 89/106/EEC on the approximation of laws, regulations and administrative procedures in the member States relating to construction projects(1);

“standard” means a technical specification approved by a recognised standardising body for repeated and continuous application, compliance with which is in principle not compulsory;

“technical specifications” means the technical requirements defining the characteristics required of the work or works, materials or goods (such as quality, performance, safety or dimensions) so that the works, work, materials or goods are described objectively in a manner which will ensure the use for which they are intended by the utility. In relation to materials and goods, “technical specifications” include requirements in respect of quality assurance, terminology, symbols, test and testing methods, packaging, marking and labelling. In relation to a work or works, they include requirements relating to design and costing, the testing, inspection and acceptance of the work or works, the methods or techniques of construction and all other technical conditions.

(2) If a utility wishes to lay down technical specifications which the goods to be purchased or hired under a supply contract or the work or works to be carried out under a works contract and which the materials and goods used in or for a woeks contract must meet, it shall specify all such technical specifications in the contract documents.

(3) Subject to paragraph (4) below, the technical specifications in the contract documents shall be defined by reference to any European specifications which are relevant.

(4) A utility may define the technical specifications referred to in paragraph (3) above other than by reference to relevant European specifications if—

(a) the utility is under an obligation to define the technical specifications by reference to technical requirements which are mandatory in the United Kingdom (but only to the extent that such an obligation is compatible with Community obligations);

(b) it is technically impossible to establish satisfactorily that the goods, materials, work or works do conform to the relevant European specifications;

(c) definition by reference to European specifications would conflict with the application of Council Directive 91/263/EEC on the initial stage of the mutual recognition of type approval for telecommunications terminal equipment(2) or Council Decision 87/95/EEC on standardisation in the field of information technology and telecommunications(3);

(d) subject to paragraph (5) below, application of European specifications would oblige the utility to acquire a work, works or goods incompatible with equipment already in use or would entail disproportionate costs or disproportionate technical difficulties;

(e) subject to paragraph (6) below, the relevant European specification is inappropriate for the particular purpose or it does not take account of technical developments which have come about since its adoption;

(f) the project for which the contract is to be entered into is of a genuinely innovative nature for which use of existing relevant European specifications would be inappropriate.

(5) A utility may only define the technical specifications other than by reference to European specifications on the grounds specified in paragraph (4)(d) above where the utility has a clearly defined and recorded strategy for changing over to European specifications.

(6) A utility relying on the derogation in paragraph (4)(e) above shall inform the appropriate standardising organisation or other body empowered to review the European specification, of the reasons why it considers the European specification to be inappropriate and shall request its revision.

(7) A utility shall state in any contract notice or periodic indicative notice sent pursuant to regulation 14(2)(a)(i) below which of the circumstances specified in paragraph (4) above was the ground for defining the technical specifications other than by reference to European specifications.

(8) In the absence of European specifications which relate to the matter in respect of which the utility wishes to lay down technical specifications, the technical specifications in the contract documents shall be defined, as far as possible, by reference to other standards which are in common use within the Community.

(9) If it is necessary to lay down further technical specifications to complement European specifications or other standards included in the contract documents the utility shall, if possible, lay down technical specifications that indicate performance requirements rather than design or description characteristics unless they would be inadequate.

(10) Subject to paragraph (12) below, the contract documents shall not include technical specifications which refer to goods of a specific make or source or to a particular process and which have the effect of favouring or eliminating particular suppliers or contractors.

(11) Without prejudice to the generality of paragraph (10) above, references to trademarks, patents, types, origin or means of production shall not beincorporated into the technical specifications in the contract documents.

(12) Notwithstanding paragraph (10) and (11) above, a utility may incorporate the references referred to in paragraph (10) and (11) above into the technical specifications in the contract documents if—

(a) the subject of the contract makes the use of such references indispensable, or

(b) the subject of the contract cannot otherwise be described by reference to technical specifications which are sufficiently precise and intelligible to all suppliers or contractors, provided that the references are accompanied by the words “or equivalent”.

(13) Subject to paragraph (14) below, the utility shall provide to any supplier or contractor who requests it a copy of the technical specifications which are regularly laid down as terms of the supply and works contracts which it awards or which it intends to lay down as terms of a contract which has been indicated in a periodic indicative notice sent to the Official Journal in accordance with regulation 13 below.

(14) Where the technical specifications referred to in paragraph (13) above are basedon documents which are available to suppliers and contractors the obligation inparagraph (13) shall be satisfied by informing any supplier or contractor who requests it of the documents which include those technical specifications.

(1)

OJ No. L40, 11.2.89, p.12.

(2)

OJ No. L128, 23.5.91, p.1.

(3)

OJ No. L36, 7.2.87, p.31.