1. The contracting authority shall state the subject-matter and quantity of the public procurement, by indicating an optional part where appropriate, in the invitation launching the procedure and, in the case of procedures launched with a prior information notice, the prior information notice.
2. The contracting authority shall lay down the technical specifications concerning the subject-matter of the public procurement in the notice launching the procedure or in the other procurement documents. Technical specifications are the totality of the technical prescriptions defining the characteristics required by the subject-matter of a public contract, which permits the subject-matter of a public procurement to be described in a manner such that it fulfils the use for which it is intended by the contracting authority. 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 its life cycle even where such factors do not form part of their material substance provided that they are linked to the subject-matter of the contract and proportionate to its value and its objectives [Article 76(7)].
3. Technical specifications shall ensure equal access of all economic operators to the procurement procedure and shall not have the effect of creating unjustified obstacles to the opening up of public procurement to competition.
4. Detailed rules for the determination and the contents of technical specifications are stipulated by a separate act of legislation.
Requirement of labels and certification
1. Where contracting authorities intend to purchase works, supplies or services with specific environmental, social or other characteristics or intend to take those characteristics into account in the evaluation, they may, in the technical specifications, the contract performance conditions or the award criteria, require a specific label, provided that all of the following conditions are fulfilled:
- the label requirements only concern criteria which are linked to the subject-matter of the contract and are appropriate to define characteristics of the subject-matter of the contract;
- the label requirements are based on objectively verifiable and non-discriminatory criteria;
- the labels are established in an open and transparent procedure in which all relevant stakeholders, including government bodies, consumers, social partners, manufacturers, distributors and non-governmental organisations may participate;
- the labels are accessible to all interested parties;
- the label requirements are set by a third party over which the economic operator applying for the label cannot exercise a decisive influence.
2. Where contracting authorities do not require the works, supplies or services to meet all of the label requirements, they shall indicate those label requirements which shall be met or are taken into account in the evaluation.
3. Contracting authorities shall accept as proof of compliance all labels that confirm that the works, supplies or services meet equivalent label requirements. Where an economic operator demonstrates that he had no possibility of obtaining the specific label indicated by the contracting authority or an equivalent label within the time limit for the submission of tenders, for reasons that are not attributable to that economic operator, the contracting authority shall accept other appropriate means of proof, in particular a technical dossier from the manufacturer, provided that the economic operator concerned proves that the works, supplies or services to be provided by it fulfil the requirements of the specific label or, in the case set out in paragraph 2, the specific requirements indicated by the contracting authority.
4. Where a label fulfils the conditions provided in points (b), (c), (d) and (e) of paragraph 1 but also sets out requirements not linked to the subject-matter of the contract, contracting authorities shall not require the label as such but may define the technical specification by reference to those of the detailed specifications of that label or, where necessary, parts thereof, that are linked to the subject-matter of the contract and are appropriate to define characteristics of this subject-matter.
1. Contracting authorities may require that economic operators provide a test report from a conformity assessment body or a certificate issued by such a body as means of proof of conformity with requirements or criteria set out in the technical specifications, the award criteria or the contract performance conditions. Where contracting authorities require the submission of certificates drawn up by a specific conformity assessment body, certificates from equivalent other conformity assessment bodies shall also be accepted by contracting authorities.
2. For the purposes of paragraph 1, a conformity assessment body shall be a body that performs conformity assessment activities including calibration, testing, certification and inspection accredited in accordance with Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93.
3. Contracting authorities shall accept other appropriate means of proof than those referred to in paragraph 1, such as a technical dossier of the manufacturer, where the economic operator concerned demonstrates that he had no possibility of obtaining the certificates or test reports drawn up by the body indicated by the contracting authority – or obtaining an equivalent certificate - within the relevant time limit for submission, provided that the lack of access is not attributable to the economic operator concerned. In such cases, the economic operator concerned shall prove that the works, supplies or services to be provided by it meet the requirements or criteria set out by the contracting authority.
Variant offers and division of the contract into lots
1. The contracting authority shall indicate in the notice launching the procedure whether or not the submission of variant offers is permitted or prescribed. When permitting or prescribing the submission of variant offers, the contracting authority shall indicate in the contract notice whether a variant offer may only be submitted in the case of a tender, which may not be regarded as a variant.
2. The contracting authority shall state in the procurement documents the minimum requirements to be observed by the variant offers and any specific requirements therefor. There shall be no requirement for the variant offers which is not linked to the subject-matter or the contract [Article 76(7)]. The award criteria shall be set in such a way as to make it possible for the contracting authority to apply them to the variants and also to the tenders which are not regarded as variants.
3. The fact that, in the case of the acceptance of a variant offer, the subject-matter of the public procurement would qualify as a public service contract instead of a public supply contract, or as a public supply contract instead of a public service contract, shall not affect the suitability of any variant offer.
4. The contracting authority shall verify whether the nature of the subject-matter of the procurement and the other circumstances linked to the contract allow division into lots. If the contracting authority does not allow the division of the contract into lots, it shall give the justification for doing so in the notice launching the procedure.5. In case of division into lots, the notice launching the procedure shall stipulate which elements of the subject-matter of the public procurement may be divided into lots for the submission of tenders or requests to participate. If the contracting authority allows the division of the public procurement into lots, the estimated value, the subject-matter and the quantity of the procurement shall be defined separately for each lot. (This amendment entered into force on 1 January 2017.)