Caribbean Trade Treaty Sets Standards for Technical Specifications

By Paul Emanuelli

The Economic Partnership Agreement, which was signed in October 2008 by the European Union and the CARIFORUM countries (Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, the Dominican Republic, Grenada, Jamaica, Saint Lucia, Saint Vincent and the Grenadines, Saint Christopher and Nevis, Suriname, Guyana and Trinidad and Tobago) contains provisions that govern the use of technical specifications in procurement documents. In keeping with widely adopted international standards, these treaty provisions

• Prohibit the use of specifications that preclude competition

• Require that technical specifications be based on international standards where such standards exist, or otherwise on national technical regulations or standards

• Require that, where possible, technical specifications be defined in terms of performance and functional requirements rather than by design or descriptive standards and call for the inclusion of the “or equivalent” proviso whenever design or descriptive standards are used

• Prohibit defining technical specifications with reference to specific trademarks, brands or suppliers unless there is no other sufficiently precise or intelligible way of describing the requirements; in such instances, the treaty provisions require the insertion of “or equivalent” to allow for alternatives

The relevant treaty provisions are reproduced following.

1. Consistent with the objectives of this Chapter, procuring entities shall ensure that technical specifications applied or intended for application to procurement covered by the Chapter are set out in the notices of intended procurement and/or tender documents.

2. A procuring entity shall not seek or accept, in a manner that would have the effect of precluding competition, advice that may be used in the preparation or adoption of any technical specification for a specific procurement from a person that may have a commercial interest in the procurement.

3. In prescribing technical specifications for the goods or services being procured, a procuring entity shall, where appropriate:
(a) specify the technical specifications, in terms of performance and functional requirements, rather than design or descriptive standards; and
(b) base the technical specifications on international standards, where such exist; otherwise, on national technical regulations, recognised national standards or building codes.

4. Where design or descriptive characteristics are used in the technical specifications, a procuring entity shall, where appropriate, include words such as ‘or equivalent’ in the technical specifications and consider tenders that demonstrably meet the required design or descriptive characteristics and are fit for the purposes intended.

5. A procuring entity shall not prescribe technical specifications that require or refer to a particular trade mark or trade name, patent, copyright, design or type, specific origin, producer or supplier, unless there is no other sufficiently precise or intelligible way of describing the procurement requirements and provided that, in such cases, words such as ‘as equivalent’ are included in the tender documentation.