A case on Belgian sewage pipes may not be of immediate interest to UK procurement practitioners. Let me tell you why it's important.

Fluvius, the sewerage authority for Flanders, was replacing some of its sewers. It specified that sewage pipes had to be made of vitrified clay and rainwater pipes had to be made of concrete.

 The challenge came from DYKA Plastics, a manufacturer of plastic pipes. They said that under what is the European equivalent of Regulations 42(12) & (13) of the Public Contracts Regulations 2015 the requirement for clay or concrete sewage pipes had to be accompanied by the words “or equivalent”. 

They then said that they should have been given an opportunity to show that their plastic pipes were “equivalent” to the clay or concrete pipes that were specified.

The Regulations say that specifications may not refer to “a specific make or source or particular process” specific to a particular supplier or to “trademarks, patents, types or a specific origin” with the effect of favouring or eliminating certain suppliers or products. They go on to say that exceptionally such references may be included where it is not possible to describe a product by reference to “performance and functional requirements” terms as long as the reference is accompanied by the words “or equivalent”.

The court agreed with DYKA Plastics, that the words “or equivalent” should have been added to the specification, saying that a reference to the use of a particular material is not a “performance and functional requirement”.

This is a post-Brexit European Court decision, so it is not technically binding in the UK. However, the wording of the EU Directive on which it is based is identical to the UK Regulations (and almost identical to their later iteration in section 56(7) & (8) of the Procurement Act 2023).  There is a strong likelihood that if a similar case is brought in the UK the court would reach the same decision.

Those writing specifications are used to the fact that they cannot refer to particular models or manufacturers unless this is essential, for example for standardisation reasons. They also know that such references must always be accompanied by the words “or equivalent”. 

Where this judgement goes further is in applying that requirement to particular materials eg slate roof tiles or equivalent, wooden doors or equivalent. Those writing specification documents should review their specifications urgently to check that they do not refer to particular materials without allowing an “equivalent” material to be proposed by a bidder.