In a recent decision, the Public Contracts Review Board (“PCRB”) has reiterated and confirmed the fundamental non-discrimination and equivalence rule which applies to the technical specifications of tenders issued by Contracting Authorities.

In PCRB case 1382 of 2019, Vodafone Malta Limited in its capacity as a prospective tenderer filed a ‘Remedy before Closing Date of a Call for Competition” in terms of Article 262 of the Public Procurement Regulations, S.L 601.03 (the “PPR”), through which it sought a remedy against the tender specifications published by the Valletta Local Council as the Contracting Authority.

In its tender for the “Supply, Delivery, Installation. Testing, Maintenance and After Sales of a Smart Parking Management System“, the Local Council requested a number of technical specifications for the smart parking system in question, including the requirement for the system to operate using a ‘LoRa or Sigfox’ LPWAN-type communication network.

In its submissions to the PCRB, the Appellant communications provider submitted that “LoRa” and “Sigfox” were both specific trademarked brand-names identifying two specific types of LPWAN Network. The Appellant held that the lack of the ‘or equivalent wording’ was effectively preventing providers using other unmentioned LPWAN networks from participating in the competitive process.

In its decision, the PCRB accepted the Appellants’ request and confirmed the principle established in Article 53 of the PPR which holds that “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 characterises 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. 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 sub-regulation (3) is not possible. Such reference shall be accompanied by the words ‘or equivalent’”

The PCRB held that technical specifications in a tender should not be formulated in a manner which limit the scope of open competition and render an advantage to any particular economic operator.  Where brand names had to be used in technical specifications the wording ‘Or Equivalent’ should always be included to ensure that the stipulated technical specifications allow, as many prospective bidders as possible.

The PCRB therefore upheld the Appellant’s concerns and ordered the Contracting Authority to include the wording ‘or equivalent’ after each brand name or system of technology being requested in the tender.

Should you require additional information on this topic please contact Dr. Thomas Bugeja on thomas.bugeja@fenlex.com.