S.L. 601.7 Art. 19Technical specifications.

(1) For the purposes of this regulation, the following definitions shall apply:

"common technical specification" means a technical specification laid down in accordance with a procedure recognised by Member States which has been published in the Official Journal of the European Union; "defence standard" means a technical specification the observance of which is not compulsory and which is approved by a standardisation body specialising in the production of technical specifications for repeated or continuous application in the field of defence; "European technical approval" means a favourable technical assessment of the fitness for use of a product for a specific purpose, based on fulfilment of the essential requirements for building works, by means of the inherent characteristics of the product and the defined conditions of application and use. European technical approvals are issued by an approval body designated for this purpose by the Member State; "standard" means a technical specification approved by a recognised standardisation body for repeated or continuous application, compliance with which is not compulsory, from one of the following categories:

(a) international standard: a standard adopted by an international standards organisation and made available to the general public,

(b) European standard: a standard adopted by a European standardisation body and made available to the general public,

(c) national standard: a standard adopted by a national standards organisation and made available to the general public; "technical reference" means any product produced by European standardisation bodies, other than official standards, according to procedures adapted to developments in market needs;

"technical specifications" means:

(a) in the case of works contracts: the totality of the technical prescriptions contained in particular in the tender documents, defining the characteristics required of a material, product or supply, which permits a material, a product or a supply to be described in a manner such that it fulfils the use for which it is intended by the contracting authority or entity. These characteristics shall include levels of environmental performance, design for all requirements (including accessibility for people with disabilities) and conformity assessment, performance, safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling and production processes and methods. They shall also include rules relating to design and costing, the test, inspection and acceptance conditions for works and techniques or methods of construction and all other technical conditions which the contracting authority or entity is in a position to prescribe, under general or specific regulations, in relation to the finished works and to the materials or parts which they involve;

(b) in the case of supply or service contracts: a specification in a document defining the required characteristics of a product or service, such as quality and environmental performance levels, design for all requirements (including accessibility for people with disabilities), and conformity assessment, performance, use of the product, its safety or dimensions, including requirements relevant to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions, production methods and procedures, as well as conformity assessment procedures;

(2) The technical specifications as defined in this regulation shall be set out in the contract documentation (contract notices, contract documents, descriptive documents or supporting documents).

(3) Technical specifications shall afford equal access for tenderers and shall not have the effect of creating unjustified obstacles to the opening up of procurement to competition.

(4) Without prejudice to either compulsory national technical rules (including those related to product safety) or the technical requirements to be met by Malta under international standardisation agreements in order to guarantee the interoperability required by those agreements, and provided they are compatible with Community law, technical specifications shall be drawn up:

(a) either by reference to technical specifications defined in this regulation and, in order of preference, to: - national civil standards transposing European standards, - European technical approvals, - common civil technical specifications, - national civil standards transposing international standards, - other international civil standards, - other technical reference systems established by the European standardisation bodies, or, where these do not exist, other national civil standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the products, - civil technical specifications stemming from industry and widely recognised by it, or, - the national "defence standards" defined in this regulation and defence material specifications similar to those standards; and every reference shall be followed by the expression "or equivalent"; or

(b) in terms of performance or functional requirements; the latter may include environmental characteristics: Provided that such parameters must be sufficiently precise to allow tenderers to determine the subject-matter of the contract and to allow contracting authorities or entities to award the contract; or

(c) in terms of performance or functional requirements as mentioned in paragraph (b), with reference to the specifications mentioned in paragraph (a) as a means of presuming conformity with such performance or functional requirements; or

(d) by referring to the specifications mentioned in paragraph (a) for certain characteristics, and by referring to the performance or functional requirements mentioned in paragraph (b) for other characteristics.

(5) Where a contracting authority or entity makes use of the option of referring to the specifications mentioned in sub-regulation (4)(a), it can not reject a tender on the grounds that the products and services tendered for do not comply with the specifications to which it has referred, once the tenderer proves in its tender to the satisfaction of the contracting authority or entity, by whatever appropriate means, that the solutions which it proposes satisfy in an equivalent manner the requirements defined by the technical specifications. For the purpose of this regulation an appropriate means might be constituted by a technical dossier from the manufacturer or a test report from a recognised body.

(6) Where a contracting authority or entity uses the option laid down in sub-regulation (4) to prescribe performance-related or functional requirements, it may not reject a tender for works, products or services which comply with a national standard transposing a European standard, with a European technical approval, a common technical specification, an international standard or a technical reference system established by a European standardisation body, if these specifications address the performance or functional requirements which it has laid down.

In its tender, the tenderer must prove to the satisfaction of the contracting authority or entity and by any appropriate means that the work, product or service in compliance with the standard meets the performance or functional requirements of the contracting authority or entity.

(7) Where contracting authorities or entities lay down environmental characteristics in terms of performance or functional requirements as referred to in sub-regulation (4)(b), they may use the detailed specifications, or, if necessary, parts thereof, as defined by European or (multi-) national eco-labels, or by any other eco-label, provided that:

(a) those specifications are appropriate as a means of defining the characteristics of the supplies or services that are the object of the contract,

(b) the requirements for the label are drawn up on the basis of scientific information,

(c) the eco-labels are adopted using a procedure in which all stakeholders, such as government bodies, consumers, manufacturers, distributors and environmental organisations, can participate, and

(d) they are accessible to all interested parties.

Contracting authorities or entities may indicate that the products and services bearing the eco-label are presumed to comply with the technical specifications laid down in the contract documents; they must accept any other appropriate means of proof.

(8) "Recognised bodies", within the meaning of this regulation, are test and calibration laboratories, and certification and inspection bodies which comply with applicable European standards. Contracting authorities or entities shall accept certificates from recognised bodies established in other Member States.

(9) Unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make or source, or a particular process, 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-regulations (4) and (5) is not possible; such reference shall be accompanied by the words "or equivalent".