Local authorities are free to choose if they want to award planning and construction services from a single source. They no longer have to prioritise the bill of quantities over the functional service description when awarding contracts, as was previously the case. This common practice in Germany through the provision of Section 7c EU para. 1 VOB/A should no longer be permissible due to a ruling by the European Court of Justice (ECJ) (C-424/23 of 16.01.2025)

As the ECJ clarifies, the EU Public Procurement Directive does not allow for a hierarchy between the methods of performance specifications. The „list of methods of formulating technical specifications“ contained therein is exhaustive. Contracting authorities are not allowed to exclude certain companies or goods from the outset by means of special technical specifications that are not in line with the directive.

The case in question involved the renovation of sewers. The client in Belgium wanted only vitrified clay pipes to be used. One bidder wanted to install plastic pipes and took legal action against the specification. In the opinion of the Belgian court, the specification did not correspond to the possibilities provided for in the Public Procurement Directive to describe a service.

According to the ECJ, the contracting authority's specification was not a performance and function specification, but a product specification, which must be specifically justified under the Public Procurement Directive. For example, references to brands, types, patents - in short, anything that is linked to a specific manufacturer - are not permitted. Material specifications may only be specified with the addition „or equivalent“. In narrowly interpreted exceptions, they are also permitted for aesthetic or functional reasons if there are no technical alternatives.