By
1st Sep 2015

The European Court ruled on a case referred to it by the Romanian Court, where a supplier of computing systems and equipment challenged a contracting authority in Romania for rejecting their tender on the basis that its computing equipment with an AMD 3.6 Ghz processor, was not up to current market standards.

The contracting authority specified a processor corresponding to "at least" an "Intel Core i5 3.2 Ghz or equivalent". During the procurement process the processor market moved on and at the time of the tender evaluation, the manufacturer no longer supported that type of processor and was producing a substantially faster product. The rejected supplier had proposed an AMD processor that complied with the technical specification set out in the ITT, but was inferior to the new Intel processor in production.

The Court ruled that the contracting authority cannot reject a tender which satisfies the requirements of the ITT on grounds which are not set out in the tender specifications.

This case is useful in highlighting two key issues:

  1. Notably the value of this contract was approximately £44,000 and award of contracts below the EU threshold are still subject to the fundamental rules and general principles of the EU Treaty (particularly the principles of equal treatment and non- discrimination and the obligation of transparency) if the contract has cross border interest.
  2. Colleges should be very careful when including particular technical requirements in specifications – if the market moves on during the tender process, the college will be tied to evaluate the tenders on the basis set out in the tender documents. Ideally colleges should ensure that those drafting specifications are up to date with the market in question and designed in such a way as to enable the college to take advantage of technological advances.

    For more guidance and templates for your procurement visit the Further Education Library of Procurement.

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