Procuring public works contracts: How prescriptive can public sector contracting authorities be in their technical specifications?

When procuring works contracts, the temptation can sometimes be to specify the brand, make, and design of construction materials to be used. Of course, this is in your best interest, you would assume, but public sector authorities are also required to comply with the requirements of the new Procurement Act 2023, which came into force on 24 February 2025. 

The Act sets out rules in relation to what can be prescribed in technical specifications when the public sector invites tenders for construction contracts (and this applies when procuring contracts valued above the threshold of £5,372,609 including VAT).

Lucilla Waugh, partner in our construction and engineering team, explains what can and cannot be specified in a works contract.

What can be prescribed in technical specifications?

In general, authorities must ensure that when drafting a specification for a works contract:

·        The stated requirements do not unnecessarily narrow competition – are they objectively required and do they allow all suppliers to tender on an equal basis? It is important that contracting authorities do not design the specification in a way that narrows the number of suppliers capable of meeting their needs or gives an unfair advantage to particular suppliers.

·        The specification does not discriminate against suppliers based outside of the UK (who are based in “treaty states” with whom the UK has entered into an international agreement specified in Schedule 9 of the Act). These international agreements prohibit discrimination and the much anticipated “Buy British” mandate is not permissible for public contracts covered by the Act.

What can/cannot be specified?

Under section 56 of the Act, you cannot include the following in your specification:

·        A particular design, licensing model or a description of characteristics where they could appropriately refer to performance or functional requirements (i.e. requirements which outline how well the works must perform/ what they must do);

·        A United Kingdom standard, unless the standard adopts an internationally recognised equivalent, or there is no internationally recognised equivalent; or

·        A particular (a) trademark, trade name, patent, design or type (b) place of origin or (c) producer or supplier, unless the contracting authority considers it necessary in order to make its requirements understood. If any of these are referred to in the procurement documents, the contracting authorities must also provide that tenders, proposals or applications demonstrating equivalent quality or performance will not be disadvantaged.

So for example, requiring a specific brand of materials or trade name is not acceptable. If you really want that brand, ask yourself what it is about that brand that makes you want it over all other brands.  

Once you have listed the features of that brand that you like, you will have an objective list of functional characteristics to include in your specification without using the brand name itself. This allows the submission of tenders using other brands, which are potentially just as good.

Further guidance on staying compliant with technical specifications in procurement can be found in the guidance note issued by the Cabinet Office.

Failure to comply with Section 56

So what if you don’t comply?  Well, procurement is to a large extent self-regulating, in that a failure to comply won't result in an offence or a fine as such. But a breach of the requirements of the Act will lead to a risk that an aggrieved supplier who wanted to win the contract (and believes they would have won had you complied) would bring a high court claim against the procuring authority. This could be for damages or, more likely, for an order requiring you to rewind the process and correct your breach. 

Claims need to be brought quickly by suppliers in procurement claims, with a limitation period of just 30 days from the date upon which the claimant first becomes aware that they have grounds for a claim.

However, the new Procurement Review Unit has the power to investigate and “name and shame” authorities that do not comply with the requirements of the Act, and can issue recommendations and guidance with which authorities must comply where it finds that there have been breaches.  

For more information on anything discussed in this article, or on construction law in general, please contact Lucilla via 0191 211 7984 or [email protected]