Can a contracting authority prescribe specific brands or products?

Contracting authorities regularly write in the specifications or guidelines that a specific brand or product must be offered. Occasionally it is stated that the tenderer may also tender with a comparable product.

Obstacle to competition

By prescribing specific brands or products, the contracting authority hinders competition. Providers of similar products cannot register. In principle this is not permitted. Yet it often happens. When is it allowed and when is it not? And what is a comparable product? According to whom? And why?

Or equal?

And then prescribing a specific brand or product. That is almost always prohibited. Contracting authorities often justify prescribing specific brands or products because they mention “or equal" to report. This is incorrect. It is only permitted in exceptional situations to mention a specific brand or product. This is only allowed if other possible descriptions are insufficiently precise and insufficiently understandable for potential tenderers. So only when it is absolutely impossible to specify a brand/product name without specifying a brand/product name is it allowed, but only then stating “or equal”.

High threshold

It is easier to offer a product that meets specific functional or performance requirements than to prove that a product is comparable to another product. Because what is the test criterion?

Proving equality

The tenderer who offers an equivalent product will have to demonstrate by all means at his disposal that his product is equivalent. That certainly does not mean that the product has to be the same or the same. It is then up to the contracting authority to assess equivalence. But how does she do that? There will be little information about this in the specifications or guidelines. How is equivalence tested and are the people capable of doing so?

Check equivalence

If you want to offer a comparable product, you must prove the equivalence and the contracting authority must check the equivalence. It is important to clarify how equivalence is checked. The only way to do this is to ask questions for the information memorandum. Who judges the equivalence? What must the tenderer submit to prove equivalence? How is the assessment procedure for equivalence structured so that favoritism is excluded? What tests are done? Which properties are tested? Which aspects are taken into account?

Conclusion

Does the contracting authority prescribe brands or specific products while this is not absolutely necessary? Then you may benefit greatly from removing that specific product or brand from the specifications. It is best to object immediately. If that doesn't help, hire a lawyer. Don't let time pass, and especially don't wait for the award decision.

If it is absolutely necessary to prescribe brands or product names, it is important to clarify as much as possible how equivalence is checked. The contracting authority may not charge compensation for this because that would distort competition.

Mr. Ing. Frank Meijers