Technical Specifications and Standards

Within a technical specification you must avoid a reference which has the effect of favouring or eliminating particular suppliers.  For example by asking for a specific make or source, or to a particular process, or trademark, patent, type, origin or means of production e.g. do not specify "Hoover" when we mean a vacuum cleaner or "Intel" when we mean a Central Processing Unit of a PC.

Such reference may only be justified if either:

• the subject of the contract makes using this kind of reference unavoidable or
• in exceptional circumstances where the subject of the contract cannot  be described in a way which is precise and understood by all bidders.

In either of the above circumstance, such must be accompanied by the words "or equivalent".

The Public Contracts (Scotland) Regulations 2015 set extensive rules on how organisations may define and incorporate technical specifications and standards.

Output/Performance Specification

The specification should be written in "performance" terms, which focuses on the product function or service output required. This means building the specification around a description of what is to be achieved rather than a fixed description of exactly how it should be done.  This encourages marketplace innovation, allowing and encouraging suppliers to propose modern (including environmentally preferable) solutions.

Design Specification

In very exceptional circumstances and for a very limited number of products or services, a "design" specification may be unavoidable because of the nature of the requirement.

This kind of specification starts with exact details of the physical dimensions, the materials used, power input and output, the manufacturing processes required, and so on.

However, this should always be tested and guidance sought, as a design specification can greatly restrict competition.

The User Intelligence Group (UIG) is responsible for developing the specification.

Given that the structure and membership of any UIG varies significantly from exercise to exercise, you should ensure that other end-users, stakeholders and technical specialists are consulted where appropriate. Part of the role of the UIG is to challenge accepted thinking. At the specification stage the UIG should explore opportunities to include economic development and sustainability considerations.

A good specification is created through the planning and research undertaken before writing begins and it is essential that you allow sufficient time to create the specification.

It is useful to discuss the specification with a range of potential tenderers during its development. This must be done in a fair and transparent manner to avoid distorting competition and/or giving any potential tenderer an advantage. Care must be taken to avoid unfairness, but also the impression of unfairness to some tenderers. Under no circumstances should any commitments be made during this process.

Following marketplace discussions, be careful that a supplier’s innovative ideas and approaches are not disclosed during the specification development.  Such innovations may provide a supplier with a competitive edge e.g. proprietary methods or Intellectual Property Rights (IPR).

You should  consider how you can encourage the production of innovative goods and services, which will assist the Organisation deliver evolving policies and strategies e.g. sustainable low carbon products.

As with all aspects of the Procurement Journey, the activities at this stage must be carried out in a carefully managed manner that supports the Principles of Procurement. 

Suppliers should not experience unnecessary costs through casual bid enquiries. You are responsible for ensuring that best Value For Money is achieved through the procurement process.

The key criteria that the User Intelligence Group (UIG) needs to ensure are met when completing the specification are that:

• the requirements are complete and accurate
• stakeholders needs are taken into account
• future developments have been taken into account
• there is consistency with the Organisations' requirements and objectives.  This includes: business case; the Procurement Reform (Scotland) Act 2014, the Public Contracts (Scotland) Regulations 2015, the Procurement (Scotland) Regulations 2016 and other relevant legislation; procurement and contracts strategies; sustainability objectives and evaluation strategy
• a suitable risk assessment is completed to ensure that related risks are closed or managed.

Once a contract is awarded the scope to make changes to the specification is very limited.  For example asking the contractor to deliver more or less than was specified at the time of tendering.

Any such changes may be challenged in the Courts. If the supplier cannot deliver in line with the requirements in the original contract (perhaps due to specification omissions or errors), the contract may have to be terminated and a new procurement undertaken.

You may authorise or require variants on the contract requirements as long as it has been specified:

• in the Contract Notice or,
• You may authorise or require variant bids.  However this must have been specified in the Contract Notice.  

The Procurement Documents must set out the minimum requirements and how any variant will be evaluated. Variants cannot be considered unless this has been done, they are linked to the subject matter and they meet the minimum requirements.

Where it is relevant, you should also consider whether to allow bidders to set out different TUPE scenarios within their bids. If you elect to include this in your tender, you should provide clear directions to tenderers to ensure that bids can be compared on a like-for-like basis.

All variant bids should be evaluated using the same criteria as the standard bids and compared on a like-for-like basis.

You can conduct market consultation.  This will help you prepare both the procurement itself and the market for the coming process. 

To undertake market consultation you can speak with independent experts, regulatory authorities or suppliers to the market. You can then use any advice received in the planning and execution of your procurement process.

You must make sure there is no distortion of competition and no negative effect on the principles of non-discrimination and transparency. 

All suppliers / bidders who join the process at a later date must be provided with the same information as those who engaged prior to the tender.  This will  ensure a fair process.

The public sector equality duty requires organisations to assess new or revised policies and practices to evaluate how they will impact people with different protected characteristics. 

You must take into account the three needs of the public sector equality duty:

• to eliminate discrimination;
• advance equality of opportunity; and
• foster good relations between people with different protected characteristics.

The protected characteristics are:

You should also integrate human rights into your impact assessments to help suppliers meet their obligations under the Human Rights Act 1998. Further information  on how to conduct equality impact assessments is available on the Equality and Human Rights Commission (EHRC) website.

The technical specification can specify whether the transfer of Intellectual Property Rights (IPR) will be required.

This is important as suppliers are likely to find the contract much less attractive if  any intellectual property  they create would be the property of the buying organisation. This may be an unnecessary barrier to competition to some suppliers who supply similar goods or services to other customers.   The Organisation, however, may legitimately ask for access to intellectual property which they require.

You can apply a number of different costing models such as life cycle costing or whole life costing as part of the specification and subsequent evaluation. 

Whole Life Costing

Focuses solely on cost(£) of a product or service from cradle to grave. It takes into account purchase, operation, ownership and disposal costs..

Environmental or social costs are not included.

Life cycle Costing 

This covers part or all of the following product or service costs :

a) costs produced by the Organisation or other users, such as:

 (i) purchase costs;

(ii)usage costs e.g. energy consumption  and other resources;

(iii)maintenance costs;

iv)end of life costs, such as collection and recycling costs; and

(b) product or service life cycle environmental costs  To include such values you must be able to calculate and verify them This may include the cost of  greenhouse gas emissions, other pollutant emissions and other climate change avoidance costs.

Life cycle costing takes into account all of the identifiable costs  of a product or service from its purchase through use, maintenance and end of life (recycling / disposal). 

These can be direct costs like scheduled maintenance and energy used through the life of a road sweeping vehicle and also less apparent external environmental costs such as the cost of emissions of greenhouse gas based on the energy use of the road sweeping vehicle provided that their monetary value can be determined and verified.

 Attributable costs can only be assessed when:

• based on criteria that don’t favour or disadvantage any potential bidders and which are not established for repeated or continuous application;
• the assessment method is accessible to all interested parties;
• the data required can be provided with reasonable effort from all interested parties. An example is the World Trade Organisation Government Procurement Agreement (e.g. USA).

If using a life cycle costing approach to award a contract, the Procurement Documents must state:

• the data bidders will provide;
• the method used to calculate the life cycle cost.

It is important to differentiate between Whole Life Costing, Life cycle Costing and Life cycle Impact Mapping:

Focuses on social and environmental impact rather than cost. It helps the user identify and assess impacts. For example, it may help to focus attention on the disposal phase before the procurement is carried out.  This would  allow you to build end-of-life management requirements into  successful contractor performance clauses and your own internal management procedures.

Please note: Life cycle impact mapping can be used alongside life cycle costing as part of the procurement process.

If you purchase goods or services with specific environmental, social or other characteristics labels can be used as a means of proof.  The label can show that the supplied goods or services correspond to the required characteristics. For example – Fair Trade addresses workforce issues and is provided by the Fair trade Foundation.

. To use this approach it is necessary to meet the following criteria:

• The labels can only concern criteria that are linked to the subject matter of the contract.  These must be appropriate to define characteristics of the supplies or services
• They have to be based on objective and non-discriminatory criteria
• The label itself is established in an open and transparent procedure. It can be accessible to all interested parties
• The label requirements are set by a third party over which no potential bidder has decisive influence

It is more proportionate for you to specify which label requirements bidders need to meet for your  requirements rather than using a broad “all applies” basis.  This approach will reduce the burden on bidders and could also expand the number of capable bidders for your process.

Equivalent labels must be accepted if the bidder can show  it has not been possible to obtain either the label or other equivalents, through no fault of its own.  You must accept other appropriate means of proof.

Samples or patterns may be issued or requested from bidders when you cannot produce a detailed description of the requirement.

In this case, a "sealed sample" must be kept for later comparison with the products supplied. Samples, patterns and drawings may also form part of a design specification.

Any samples provided by tenderers that are no longer required should be returned to the tenderer.

Care should be taken that Copyright is not breached when using samples, patterns etc. for specification purposes. Consideration  needs to be given to the Intellectual Property Rights of the tenderers.

Simplification and variety reduction techniques can help in reducing costs and in obtaining better Value for Money (VFM).

Specification simplification and variety reduction involves removing design complexities.  For example by removing different design types, sizes, grades etc. of products.

At its simplest this might be seen as the:

• reduction in the number of item colours  purchased,
•  sizes of envelopes purchased and kept in stock

 This can be a valuable tool when creating a specification for large collaborative procurements.

You will consider how the contract quality, sustainability and performance of goods and services will be measured as you develop your specification, especially an output specification.

These factors should be included translated into the Management Information (MI) and Key Performance Indicators (KPIs) that you require from your supplier(s).  MI and KPIs should be included in your ITT and Terms and Conditions.

It is also best practice  that suppliers are contractually required to provide line item spend detail as part of their contract support.

Demand should be regularly assessed.  In some business areas internal customers or budget holders may under or over specify e.g   for consultancy services, specifying a Partner when an Associate could deliver the brief: they are  suitable and can deliver at less than half the day rate.  It could be more cost effective to have a fixed term appointment than having an interim who stays in place for much longer than the initial contracted period.

In order to avoid scope creep, it is essential to ensure that a robust scoping process is undertaken at the earliest opportunity.  Otherwise a supplier may offer additional services which are not  required. Supplier led scope creep can occur and should be demand managed. An example  is an IT project aimed at buying a records management system which links, shares and  allows the  updating of records. If a project like this is not fully scoped and requirements understood early on suppliers may exploit planning gaps.   The supplier may add additional products or services as a problem “resolution tool”.  This would increase the scope, cost and timescales of the initial project. 

Whilst all the guidance in this station should be considered when procuring Care and Support Services specific Care and Support Services guidance can be found in Developing the Service Specification.