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Revisiting EU Directive 2004/18/EC

John Gelder, Architect and NBS Content Development Manager, reports on queries and responses about procurement.

Since our last article on this subject ('The propriety of public procurement', NBS Journal 09, November 2006) we have contacted the Public Procurement Policy unit of the European Commission (EC), conducted a specifier survey, spent an afternoon with a local authority, and dealt with several queries from project specifiers. It is time to report back.

European Commission

In 2007 ICIS (the International Construction Information Society), of which NBS is a founding member, on behalf of its European members, sent 21 questions (supplemented with explanatory material – all drafted by NBS) to the EC. Answers were received for half of them, but most added little or nothing to the contents of the Directive itself. Two answers were useful, however, and are here passed on verbatim (for your enjoyment).

Q1 Can brands be specified if the designer:

Wants to define property qualities that are different to those set by a standard?
Wants to define properties that are not set by a standard?
Wants to match a brand already used in an existing facility or in related facilities?
Is required to use a brand by local authorities?
Wants to define appearance precisely?

A 'While the general rule is clear, it is difficult to assess if in certain cases an exception can be made, while a specific knowledge of the market/products/services in question is needed. In general, the examples mentioned in your questions do not [my emphasis] seem to satisfy the conditions mentioned.'

Q2 Would a general statement in the preambles to the specification, applying 'or equivalent' to all mentions of standards and brands, be acceptable?

A 'It is necessary to add the words 'or equivalent' to references to specifications mentioned in Annex VI and to references to a specific make or source, or a particular process, or to trade marks, patents, types or a specific origin or production. The directive states this expressly. It also states that this is needed at each reference (Article 23 paragraph 3 sub a and 8). I may add that as this obligation ensues directly from the provisions and principles of the Treaty, it also applies to contracts whose value is below the thresholds [my emphasis] established by the Directives, see the Court's Order of 3 December 2001 in Case C-59/00 (Mousten Vestergaard).'

In summary, none of the reasons we gave for specifying by brand were considered acceptable reasons for doing so. Therefore, generic specification of products should be the norm for public sector procurement. However, it is necessary to include the term 'or equivalent' at every reference to a technical document such as a BS EN. If you do use brand specification in the belief that your situation satisfies the restrictive requirements of the Directive, you must use 'or equivalent' at every product reference.

I think, though we did not ask, that if a Local Authority client has legal framework agreements in place for the supply of particular products (e.g. carpets, ironmongery and furniture) then it is OK to cite those brands in the specification. But you should check this – I am no lawyer!

Specifier survey

We followed this enquiry with a survey of specifiers' experiences of the Directive across Europe, launched in 2009. This has had a disappointing response, both from European ICIS members who were asked to post a link to it locally, and from UK specifiers (just 20 responses, only one from outside the UK). It is still online if you'd like to complete it: ICIS EU Directive Survey.

Most respondents (60%) were architects, and most (65%) were in the private sector. Key findings are as follows (unfortunately, the small response means the figures don't carry much weight).

55% were unfamiliar with the Directive, but for 45% at least half of their work falls under it. Overall, 55% of respondents rated the Directive's requirements as poor, but 10% thought they were good.

Most of our questions were about the use of proprietary specifications. For projects under the Directive, 92% had specified by reference to a single brand. Indeed, for 55% of respondents the number of products specified by brand was about the same for projects under the Directive as for those not under it. For 27% the number was smaller, but for 9% it was bigger! 60% attempted to deal with the 'barriers' problem by specifying more than one manufacturer for a product.

Various reasons were given for specifying by brand under the Directive, the most common (64% each) being to match existing products or to define visually important products. 45% wanted better-than-standard quality and 36% couldn't easily describe the products generically. For 27% only one product on the market was suitable, and for 27% the client had a supply agreement in place.

When specifying by brand under the Directive, no-one attached 'or equivalent' to each specification. 45% relied on a clause in the Preliminaries (see below) which is seen as having the effect of making this attachment. 18% said they specified the brands outright. 27% said their approach varied. All said that brand specifications had been challenged. 55% said use of 'or equivalent' had led to the use of unsuitable products, and 55% said use of 'or equivalent' had led to dispute.

If specifying generically, but wanting a specific brand to be used, 20% use a phrase along the lines of 'match existing', and 40% used 'fake' generic clauses, in which the clause describes a product so tightly that only one brand complies. I am not sure that this is in the spirit of the Directive!

Avoidance of brand specifications had a negative impact on the project time, cost or quality for 50% of respondents. No-one thought it had a positive impact. Use of 'or equivalent' was considered to have a negative impact by 50%, but 20% rated the impact positively.

We also asked a number of parallel questions about use of standards in projects under the Directive. 83% had referenced single standards on projects under the directive. As expected, most (90%) had not specified by reference to standards from more than one country. 20% attached 'or equivalent' to each citation, 20% specified them outright, 40% relied on a general clause in the Preliminaries (not in NBS – see below), and for 20% the approach varied. Half had had the specification challenged where single standards were specified, which is surprising. 63% reckoned 'or equivalent' had led to dispute. 10% thought 'or equivalent' had a negative impact, 10% saw it as positive.

In summary, specifiers generally do not comply with the Directive. Most specify by brand for projects under the Directive. No-one attached 'or equivalent' to each brand specification. 80% did not attach 'or equivalent' to citations of standards, either. Over half the respondents had difficulties arising from use of 'or equivalent', both for brands and standards. Half thought avoidance of brand specifications had a negative impact on the project. None saw it as positive.

In spite of this general non-compliance, specifiers (and their clients) appear to be more concerned by this issue than they used to be, judging by the (modest) increase in queries we have fielded, from both the private and public sectors. In one case, a local authority advised that its standard practice is to name or pre-approve manufacturers when specifying building products, with a clause in the Preliminaries to say that, where the building product is named 'other equal and approved', other products can be substituted. It was also noted that 'our Architects can also be 'lazy' and often see naming products as an easy and convenient way of producing specifications without regard for implications this may have in compliance with ... the EU Directive'. This approach seems to be typical.

NBS and the Directive

Apart from the business of avoiding brands and specifying 'or equivalent' at every opportunity, the UK implementing legislation has requirements for inclusive design and eco-labelling. How does NBS currently deal with these issues?

Avoiding brands: Product clauses in NBS are often composite proprietary and generic. This is simply to give specifiers the choice. It is not intended that specifiers retain and complete both parts of such clauses. If specifying generically (to meet the requirements of the Directive), use the 'Manufacturer/ Product reference: [...] ' component only to state whether these are Contractor's choice, or if the contractor should Submit proposals.

One might think that, if specifying by brand, Preliminaries clause A31/200 provides a get-out-of-jail card by allowing substitution. That is, specification of a brand is not a barrier since that brand can be replaced at the contractor's suggestion. However, the clause guidance advises that substitutions during the construction period should be discouraged. This rather suggests that specifying by brand while allowing substitution is not in accord with the spirit of the Directive.

Use of 'or equivalent' with brands: NBS supports proprietary specification of products, e.g. by use of NBS Plus. But the NBS software does not add 'or equivalent' for you where the project falls under the Directive – you are expected to do this yourself, e.g.

Manufacturer: Acme Ltd or equivalent.
Product reference: Model 1234-5, or equivalent.

Some regard NBS Preliminaries clause A31/230 as dealing with this requirement but, as we have seen, this approach does not meet the requirements of the Directive. Indeed, the guidance to this clause makes it clear that the clause is intended only as 'an insurance against inadvertent omission of or equivalent' at the odd citation of a brand. It is NOT intended to serve as global cover. Quite properly, the guidance advises inclusion of 'or equivalent' at every citation.

Use of 'or equivalent' with standards: NBS makes widespread use of standards, for system performance, for generic specification of products, for execution and so on. This is generally in line with the intentions of the Directive. However, the NBS software does not add 'or equivalent' to citations of standards, technical approvals and the like, for public sector procurement. Specifiers need to do this themselves, e.g.

Standard: To BS EN 1234-5, or equivalent.
Technical approval: BBA Certificate, or equivalent.

A mopping-up clause, parallel to A31/230, may be added to the Preliminaries if specifiers believe it to be necessary.

Inclusive design: Work on consistent implementation of inclusive design across NBS, in accordance with BS 8300 and Approved Document M (E&W), has been completed with help from an Access Consultant (see Michele Lucarelli's BS 8300 and inclusive access). NBS is also developing a system and product reporting tool for AD M (and the other E&W ADs) in NBS Building Regulations.

Eco-labelling: BREEAM, implemented now across NBS (see Bill Clark's NBS and BREEAM), refers to BRE Environmental Profiles via the BRE Green Guide. Systematic implementation of third party product certification generally is planned – Kitemark will come first. Eco-labelling (e.g. to certain parts of BRE Certification's GreenBook, at www.greenbooklive.com) will follow.