Your specification is probably naming a brand, and the Procurement Act 2023 has views
Most public sector specifications are inherited documents. They get copied from the last competition, lightly edited, and pushed out again, and somewhere in the middle sits a product name, a licensing model, or a page of descriptive characteristics that quietly decides the outcome before a single bid arrives. Section 56 of the Procurement Act 2023, and the GOV.UK guidance on technical specifications, makes that harder to keep doing. The rule is that procurement documents must refer to performance or functional requirements, and not design, a particular licensing model or descriptive characteristics, unless it is not appropriate to do so. That is a drafting instruction, but it is really a change in how buyers think about what they are buying.
Why this matters more than it looks
It is tempting to read the technical specifications guidance as housekeeping. It is not, for one structural reason: a technical specification is not confined to the document called the specification. The guidance is explicit that specifications can be incorporated into the authority's requirements, into conditions of participation, into the conditions for membership of a dynamic market, into the competitive selection process under a framework, and into award criteria. The rules travel with the requirement.
That multiplies the exposure. A constraint that would be questionable in the requirements becomes considerably more serious as a condition of participation, because it excludes suppliers rather than scoring them. And in each of those settings, the requirement must satisfy both section 56 and the rules of the document it sits in, which the guidance links to sections 21, 22, 23, 36 and 46 of the Act.
The practical consequence is that specification review can no longer be a single sign off on a single document. It has to be a check across the whole tender pack, asking the same questions of every requirement wherever it appears.
What most organisations get wrong
The first mistake is treating the exception as the rule. The wording allows departure from performance or functional requirements where it is not appropriate to use them, and it is remarkable how quickly that reads as permission to carry on as before. If your specification is mostly descriptive and nobody has written down why, you are relying on an exception you have not argued.
The second is the equivalence sentence with nothing behind it. Plenty of documents say equivalents will be accepted, and then no one has decided who assesses an equivalent, against what, or by when. A bidder offers an overseas standard, the evaluation panel has no method, and the safe answer becomes rejection. The guidance requires that equivalent overseas standards are accepted where a UK standard is specified, and that suppliers offering equivalents are not disadvantaged. An unusable process disadvantages them just as effectively as an outright ban.
The third is software. Specifying a licensing model rather than the functionality and service outcome is called out directly in the guidance, and it is one of the easiest constraints to write in without noticing, particularly when a renewal is being dressed up as a competition.
The fourth is accessibility as an afterthought. The guidance ties specification drafting to the needs of people with disabilities and to the public sector equality duty in section 149 of the Equality Act 2010, and notes that the duty runs across the whole commercial lifecycle. A line in the background section is not a requirement anyone can bid against or be evaluated on.
What to do about it
Start with a brand sweep across your live and template documents. Search for product names, trade names, types, places of origin and licensing terms. For each hit, either delete it and express the requirement functionally, or record why the reference is necessary to make the requirement intelligible and add an explicit statement that equivalents are accepted and will not be disadvantaged.
Then fix the equivalence process rather than the equivalence sentence. Name the assessor, define what evidence you expect, and decide up front where an equivalent genuinely cannot be accepted, for example where legislation fixes a safety requirement. The guidance recognises that authorities can consider the purpose of the procurement when judging equivalence, but that judgement has to be made and recorded, not improvised during evaluation.
Get your standards hierarchy right at the same time: international standards, or UK standards adopting an international equivalent, before other UK standards. And where you want certification, use conformity assessment bodies accredited by the UK Accreditation Service or an equivalent national accreditation body, and keep certification and label requirements proportionate.
Finally, write the reasons down as you go. Almost every difficult conversation about a specification, whether with a bidder, an auditor or a court, turns on whether the authority can show it made a decision rather than repeated a habit.
The takeaways
- Section 56 pushes buyers towards performance and functional requirements, and away from design, licensing models and descriptive characteristics.
- Technical specification rules follow the requirement into conditions of participation, dynamic market conditions, framework competitions and award criteria.
- Naming a brand, type or place of origin is only permissible where it is necessary to make the requirement intelligible, and only with equivalents expressly accepted.
- Prefer international standards, or UK standards adopting an international equivalent, and accept equivalent overseas standards where a UK standard is specified.
- Accessibility is a specification issue, and the public sector equality duty applies across the whole commercial lifecycle.
Want the full breakdown?
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