Art. 68. Technical specifications

1. The technical specifications as defined in point 1 of Annex XIII shall be included in the procurement documents and shall lay down the characteristics required of works, services or supplies. Those characteristics may also refer to the specific process or method of production or provision of the requested works, supplies or services or to a specific process for another stage of their life cycle even where such factors do not form part of their substantial content, provided that they are linked to the subject-matter of the contract and proportionate to its value and its objectives.

2. The technical specifications may also specify whether the transfer of intellectual property rights will be required.

3. For all procurement which is intended for use by natural persons, whether general public or staff of the contracting authority, it is necessary that the technical specifications shall, except in duly justified cases, be drawn up so as to take into account accessibility criteria for persons with disabilities or design for all users. Where mandatory accessibility requirements are adopted by a legal act of the European Union, technical specifications shall, as far as accessibility criteria for persons with disabilities or design for all users are concerned, be defined by reference thereto.

4. Technical specifications shall afford equal access of economic operators to the procurement procedure and shall not have the effect of directly or indirectly creating unjustified obstacles to the opening up of public procurement to competition.

5. Without prejudice to mandatory national technical rules, the technical specifications shall be formulated in one of the following ways:

a) in terms of performance or functional requirements, including environmental characteristics, provided that the parameters are sufficiently precise to allow tenderers to determine the subject- matter of the contract and to allow contracting authorities to award the contract;

b) by reference to technical specifications and, in order of preference, to national standards transposing European standards, European Technical Assessments, common technical specifications, international standards, other technical reference systems established by the European standardization bodies or - when any of those do not exist - national standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the supplies. Each reference shall be accompanied by the words ‘or equivalent’;

c) in terms of performance or functional requirements as referred to in letter a), with reference to the technical specifications referred to in letter b) as a means of presuming conformity with such performances or functional requirements;

d) by reference to the technical specifications referred to in letter b) for certain characteristics and to the performances or functional requirements referred to in letter a) for other characteristics.

6. Unless justified by the subject-matter of the contract, technical specifications 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 origin or production with the effect of favouring or eliminating certain undertakings or certain products. However, such reference shall be permitted on an exceptional basis, where a sufficiently precise and intelligible description of the subject-matter of the contract pursuant to paragraph 5 is not possible. In that case, such mention or reference shall be accompanied by the words ‘or equivalent’.

7. Where contracting authorities use the option of referring to the technical specifications referred to in paragraph 5, letter b), they shall not reject or exclude a tender on the grounds that the works, supplies or services tendered for do not comply with the technical specifications to which it has referred, once the tenderer proves in its tender by any appropriate means, including the means of proof referred to in Article 86, that the solutions proposed satisfy in an equivalent manner the requirements defined by the technical specifications.

8. Where contracting authorities use the option laid down in paragraph 5, letter a) to formulate technical specifications in terms of performances or functional requirements, they shall not reject or exclude a tender for works, supplies or services which comply with a national standard transposing a European standard, a European technical approval, a common technical specification, an international standard or a technical reference system established by a European standardization body, where those specifications address the performances or functional requirements which it has laid down. In its tender, the tenderer shall prove by any appropriate means, including means of proof referred to in Article 86, that the work, supply or service in compliance with the standard meets the performance or functional requirements of the contracting authority.