Brussels, 13 October 2004
Public procurement: Commission examines discriminatory specifications in supply contracts for computers in four Member States
The European Commission has decided to formally ask France, the Netherlands, Finland and Sweden for information on certain invitations to tender launched by authorities in those countries for the supply of computer equipment. The Commission wonders whether it is compatible with the public procurement Directives to require the procurement of Intel microprocessors or microprocessors using a specific clock rate. Reference to a specific brand would, in the Commission’s view, constitute a violation of Directive 93/36/EEC on public supply contracts, while merely specifying a clock rate – which is insufficient for assessing the performance of a computer – would be contrary to Article 28 of the EC Treaty, which prohibits any barriers to intra-Community trade. The Commission’s requests are in the form of letters of formal notice, the first stage of the infringement procedure under Article 226 of the EC Treaty. The Member States in question will have two months to reply. If the Commission is not satisfied with the replies and finds that European law has indeed been infringed, it may formally ask these Member States to rectify the irregularities in the award of these contracts. If the Member States fail to bring these contracts into line, the Commission may bring the cases before the Court of Justice.
The Commission has decided to send letters of formal notice to France, Finland, the Netherlands and Sweden on the grounds that there is reason to believe that authorities in those countries describe the technical characteristics of the computers they wish to acquire in a discriminatory fashion. Three variants have been identified in the invitations to tender in question: requirements to supply “Intel” microprocessors, “Intel or equivalent” microprocessors, or microprocessors using a specific clock rate. Under European law on public procurement, a brand may be specified only if it is otherwise impossible to describe the product sufficiently precisely and intelligibly. There are, however, ways of describing microprocessors and particularly the performance required. For example, there are various “benchmarks” for this purpose. Merely specifying a clock rate is not sufficient for assessing the performance of a computer.
A dozen or so invitations to tender have been launched by local authorities or public bodies in France for the supply of microcomputers, servers or workstations with Intel (or equivalent) microprocessors or microprocessors with a clock rate above a specified minimum (which would favour Intel microprocessors).
An invitation to tender for the supply of computers, notebooks and monitors, together with the provision of associated services has been launched by the Municipality of Amsterdam, and an invitation to tender for the supply of computer hardware together with associated services has been launched by the IGEA group (a consortium of contracting authorities). In both cases, “Intel or equivalent” microprocessors are specified. The Amsterdam invitation to tender also calls for microprocessors using a specific clock rate.
The Universities of Jyväskylä and Tampere and Häme Polytechnic have published three separate invitations to tender for the supply of computers. Each contains technical specifications stipulating that the computers must be equipped with Intel (or equivalent) microprocessors.
The Municipality of Filipstad and Chalmers University of Technology have published three separate invitations to tender for the supply of computers. Both specify that the equipment supplied must be fitted with Intel Pentium microprocessors. The national police authority [Rikspolisstyrelsen] has published an invitation to tender for the supply of portable computers, specifying that they must be equipped with Intel Centrino or equivalent microprocessors. The Uppsala regional authority has published an invitation to tender for the supply of computers, specifying that they must be equipped with a microprocessor using a specific clock rate.
The Commission sent letters of formal notice on similar cases to Italy and Germany at the beginning of this year.