Technical specifications seem to be featuring in the European case law at the moment. In an earlier blog I discussed a case on sewage pipes. 

In that case,e the obligation to allow “equivalents” applied also to materials specified, as well as to specific makes and manufacturers. 

A Bulgarian local authority, Obshtina Pleven, included a reference to specific standards required for kerbstones, concrete kerbs and fibre optic cables in its tender for urban road improvement works. However, they failed to include the words “or equivalent” after referring to these standards. The project was EU-funded, and the funding body applied a deduction to the funding for this “non-compliance”. 

Obshtina Pleven challenged the deduction. This was on the basis that the standard quoted was based on a harmonised EU standard, so there were no “equivalents”. The European court gave short shrift to the argument. The Court said that the Directive made it clear that where a specific standard was referenced, it must be accompanied by the words “or equivalent”. This applied, with no exceptions, whether or not the standard was based on a harmonised EU standard!

This is a post-Brexit decision of the European Court. Technically is not binding on the UK courts. However, given this decision has now been made, it is unlikely that the UK courts would take a different approach. 

It is still not clear whether each reference to a standard in a technical specification has to be accompanied by the words “or equivalent” or whether a general statement at the start of the specification is sufficient. It is to be hoped that if this ever gets to court a pragmatic approach will be taken and a general statement that “equivalents will be accepted” will be deemed to be acceptable. If not, then specifications are going to get even longer with the words “or equivalent” being repeated after each technical specification referenced.