Can we specify OEM parts for a maintenance contract?

Because we procure so many maintenance contracts, this is a question we are asked time and again. Surely, clients ask, we can specify whatever we want? Unfortunately, it isn’t that simple.

Specifying OEM parts only is not allowed.
The treaty principles are crystal clear on this type of issue. Contracting Authorities must draft Technical Specifications in such a way that does not distort or restrict competition. The actual, somewhat obscure, wording is:

“shall not have the effect of creating unjustified obstacles to the opening up of public procurement to competition”

In practice, this means you can’t specify something that only one economic operator is capable of providing – even if that is what you want.

Does this restriction only apply to above-threshold procurements such as tenders?
There are several fundamental principles that flow from The Treaty on the Functioning of the European Union. At least one of these – Equal Treatment – would prevent the specification of parts from a single manufacturer. And, because the Treaty principles sit above the regulations (PCR 2015), this applies to all procurements, regardless of size or whether a specified procedure is followed. This even includes contracts that are otherwise exempt from the EU Procurement Directives.

So, how do we ensure we get what we need?
Whilst you cannot specify parts from a specific manufacturer, you can require that bidders only supply parts that ‘are of equivalent or greater quality’. Contracting Authorities have broad discretion in deciding how they would evaluate that quality is ‘equivalent’. What matters most is that any evaluation – and subsequent rejection based on the parts to be supplied – is transparent and defensible. Third-party maintainers are well aware of the rules and are likely to challenge this point if they feel they are being disadvantaged unfairly.

Can we insist on new parts?
Without a clear and defensible justification, this is not allowed either. Any decision to restrict the supply to new parts would need to be supported by clear proof that any other parts would be unable to function effectively. It cannot be the result of a preference, or even an internal policy. However, in establishing whether a (used) part is of ‘equivalent quality’, Contracting Authorities may require a full history of any part proposed to be used, and evidence of the quality and effectiveness of the part. Even if an award is made to a maintainer that uses refurbished parts, Contracting Authorities are entitled to make the decision on quality for every individual part.

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