Art. 170. Technical and functional requirements

1. Technical and functional requirements of the works to be executed or of the services to be provided that are the subject-matter of the concession shall be set out in the concession documents.

Those characteristics may also refer to the specific process of production or execution of requested works or of provision of requested services provided that they are linked to the subject-matter of the contract and proportionate to its value and its objectives. The technical and functional characteristics may include, on the basis of the requests made by the contracting authorities or entities, quality levels, environmental and climate performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety or dimensions, terminology, symbols, testing and test methods, marking and labelling, or user instructions.

2. Unless justified by the subject-matter of the contract, technical and functional requirements shall not refer to a specific make or source, or a particular process which characterizes the products or services provided by a specific economic operator, or to trade marks, patents, types or a specific production with the effect of favoring or eliminating certain undertakings or certain products. Such a reference, on an exceptional basis, shall be permitted where a sufficiently precise and intelligible description of the subject-matter of the contract is not possible; such reference shall be accompanied by the expression "or equivalent".

3. Contracting authority or contracting entity shall not reject a tender on the grounds that the works and services tendered for do not comply with the technical and functional requirements required in the tender documents, once the tenderer proves in its tender, by any appropriate means, that the solutions it has proposed through its tender satisfy in an equivalent manner the technical and functional requirements.