Exception to the ban.

One of the manifestations of the principle of fair competition is the prohibition to describe the subject of the contract in a way that could hinder fair competition. This obstruction may consist in the indication of trademarks, patents or origin, source or specific process that characterizes the products or services provided by a particular contractor, if this could lead to favoring or eliminating certain contractors or products. However, the ban on using trademarks in the description of the subject of the contract is not absolute. The contracting authority may use a trademark in the description of the subject of the contract in a situation where the contracting authority cannot describe the subject of the contract in a sufficiently precise and understandable manner, and such an indication is accompanied by the words ” or equivalent „.

Merely „or equivalent ” is not sufficient.

Contrary to the belief quite common among contracting authorities, it is not sufficient to include the phrase „or equivalent” in the description of the subject of the contract in order to use a trademark . In the content of the new Public Procurement Law, the legislator explicitly included an additional obligation of the contracting authority, i.e. to indicate the criteria used to assess the equivalence in the subject of the contract.

Useful changes in the new Public Procurement Law .

Previously, this obligation resulted from jurisprudence. Failure to mention the criteria by contracting authorities resulted in disputes at the stage of examination and evaluation of tenders. In the judgments of the National Appeals Chamber, it was argued that indicating the criteria used to assess equivalence is necessary, on the one hand, to enable the contracting authority to make an unequivocal assessment of whether the offered product meets the requirements, as well as to compare the submitted offers. On the other hand, in order for the contractor to know the expectations of the contracting authority in terms of essential features characterizing the subject of the contract and to enable the contractor submitting the offer to unambiguously verify whether the solution proposed by him meets the requirements of the contracting authority. Therefore, the change in the wording of the Act should be assessed fully positively.

The exception must not become the basis for abuse.

As a rule, contracting authorities should not use trademarks in the description of the subject of the contract, but if the conditions described above are met, the use of a trademark will be lawful. The described exception cannot, however, constitute grounds for abusing the use of proper names in the description of the subject of the contract. The more so as the report on the study on low competition in the public procurement market conducted by the Public Procurement Office shows that one of the most important reasons for low interest in participation in tenders was indicated by entrepreneurs: „description of the subject of the contract preferring a specific product or company „ .

In the next part of the cycle, we will tell you how to properly construct tender evaluation criteria.