This MOU is made on 20 October 2015

Between:  

  • Rhondda Cynon Taff County Borough Council of The Pavillions, Clydach Vale, Tonypandy, Cf40 2XX; and
  • Contractors appointed to the SEWSCAP2 Framework Agreement and Participating Authorities

 This Memorandum of Understanding is not intended to create legal relations or to be enforceable by the parties above.

Purpose

This MOU is produced in response to the UK Steel Initiative for a Charter for Sustainable Steel.

The Charter seeks to promote the use of Sustainable British Steel in Construction projects. It asks public and private sector organisations to commit voluntarily to purchase carbon steel reinforcement for concrete only from vendors that adhere to the Framework standard for Responsible Sourcing (BES6001). This ensures the rebar being used is safe, sustainable and responsibly sourced.

An advice note on using technical specifications has been prepared by Blake Morgan for the Welsh Purchasing Consortium and is attached.

Advice Note

To Welsh Purchasing Consortium

Attention Rob Jones

From Blake Morgan LLP

Subject The use of Technical Specifications

Date 27 May 2015

Table of Contents

Section Page

1 Introduction ………………………………………………………………………………………………………………. 1

2 Executive Summary ………………………………………………………………………………………………….. 1

3 Advice ……………………………………………………………………………………………………………………… 1

4 Proposed Wording ……………………………………………………………………………………………………. 2 1

1 INTRODUCTION

1.1 The WPC has requested us to give consideration to an initiative which proposes supporting the Welsh and UK Steel Industry by including the BES 6001 Standard (relating to carbon steel reinforcement for concrete) in all future procurement tender documents where steel is a major component of the project.

2 EXECUTIVE SUMMARY

2.1 In the absence of BES 6001 being a mandatory national technical rule which, on the basis of the information before us, appears not to be the case, where a contracting authority specifies the BES 6001 the contracting authority must also make it clear that the equivalent European standards will be accepted.

3 ADVICE

3.1 Regulation 42 of the Public Contracts Regulations 2015 (PCR 2105) sets out the requirements with regard to technical specifications and how these must be included in procurement documents. Regulation 42(10) provides that technical specifications must afford equal access by economic operators to the procurement procedure and shall not have the effect of creating unjustified obstacles to the opening up of public procurement to competition. Regulation 42(11) goes on to state that without prejudice to mandatory national technical rules, technical specifications must be formulated, where standards are used, with reference to national standards implementing European standards or other European specifications. If these do not exist, contracting authorities should specify by reference to national standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the products. Each of these references must be accompanied by the words “or equivalent“.

Therefore in the absence of BES 6001 being a mandatory national technical rule which, on the basis of the information before us, appears not to be the case, where a contracting authority specifies the BES 6001 the contracting authority must also make it clear that the equivalent European standards will be accepted.

Contracting authorities must consider offers which claim to satisfy procurement requirements in an equivalent manner even though they do not conform to the standard in question. Regulation 42(14) states that where a contracting authority uses the option of referring to the technical specifications where a standard is proposed, the contracting authority shall not reject the tender on the basis that it does not comply with the technical specification if the tenderer can prove in its tender by any appropriate means that the solution proposed satisfies, in an equivalent manner, the requirements defined by the technical specifications. The means of proof may include a test report from a conformity assessment body or a certificate issued by a body as means of proof of conformity with requirements or criteria set out in the technical specifications (Regulation 44(1)). Where test reports or certificates are 2

not available, contracting authorities shall accept means of proof such as a technical dossier of the manufacturer, provided that the failure to provide certification or a test report is directly attributable to the economic operator concerned and the economic operator can prove by the evidence submitted that the works, supplier or services will meet the criteria set out in the technical specification.

Therefore whilst it is possible to specify the BES 6001 standard, the contracting authority must make it clear that equivalent European standards will also be accepted.

4 PROPOSED WORDING

4.1 Proposed wording for inclusion in procurement documents is set out below:

The tenderer will ensure that the provision of carbon steel reinforcement for concrete meets the BES 6001 (or equivalent) standard. Where tenderers submit a response in terms of which they claim to meet the contracting authorities’ requirements in an equivalent manner, the contracting authority will require the tenderer to prove technical equivalence. Technical equivalence may be proved in accordance with the provisions of Regulation 44 of PCR 2015. Failure to provide proof of equivalence may result in the tenderers’ response being rejected on the basis that it does not meet the contracting authorities’ requirements.

*Please note this advice was given in relation to a general question and may vary in different circumstances. Authorities should therefore consider taking further advice on any specific situations arising in practice

SEWSCAP 2 – Sustainable Steel Charter
Tagged on:                     

Leave a Reply