The Court of Justice of the European Union (“CJEU”) recently delivered a preliminary ruling stating that when the technical specifications in a tender document refer to a specific mark, origin or production, the contracting entity must require tenderers to submit, already in its tender, proof that products proposed are equivalent to those defined in the technical specifications.
In this case, an Italian public transportation authority required the trademark Iveco/FIAT in its call for tenders in a public procurement for provision of spare parts- new or second-hand or equivalent for Iveco buses and trolleybuses. Referring to the then-equivalent of Article 60(4) of Directive 2014/15/EU, the CJEU reminded that reference, in technical specifications, to among others, a specific make or source is only permissible on an exceptional basis, and even then such a reference must be accompanied by the words ‘or equivalent’. However, this provision does not state at what point in time the ‘equivalent’ nature of a product offered by a tenderer must be proved.
In this regard, the CJEU held that the principle of equal treatment and the duty of transparency applying both to formulation and assessment of tenders require that proof of equivalence of products is submitted with the tender bid in order for all tenders to be subject to the same conditions when they are assessed. The CJEU added that the law makes it clear that contracting entities must verify that tenders submitted comply with the rules and requirements applicable and that contracting authorities must be able to provide a reason for any decision that equivalence does not exist.
It concluded that while contracting authorities cannot permit tenderers to prove the equivalence of products proposed after they have submitted their tenders, they have discretion in determining the means that may be used for such proof, as long as such means allow the contracting entity to carry out a meaningful assessment and, at the same time, do not create unjustified obstacles to the opening-up of the tender to competition.
Case cited: Case C-14/17, VAR Srl and Azienda Trasporti Milanesi SpA (ATM) v Iveco Orecchia SpA ECLI:EU:C:2018:568