Product Neutrality in Public Procurement Law

Definition: Product neutrality refers to the procurement-law prohibition on referring, in technical specifications, to a specific make or source, a particular manufacturing or working process, trade marks, patents, types, or a specific origin, where this would favour or eliminate certain undertakings or products; exceptions are permitted only where the subject matter of the contract cannot otherwise be described with sufficient precision and the reference is accompanied by the words "or equivalent" (Art. 42(4) Directive 2014/24/EU).

Last updated: January 2026 · Legal basis: Art. 42(4) Directive 2014/24/EU; § 31(6) VgV; § 97 BVergG 2018

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What is product neutrality?

Product neutrality is the requirement to formulate technical specifications in such a way that all bidders can participate in the competition regardless of which specific products or manufacturers they use.

Art. 42(4) of Directive 2014/24/EU expressly enshrines the principle of product neutrality: technical specifications may not refer to a specific make or source, or a particular process which characterises the products or services provided by a specific economic operator, or to trade marks, patents, types, or a specific origin or production, where this would have the effect of favouring or eliminating certain undertakings or certain products.

The requirement is directed against so-called reference products (Leitfabrikate): if a contracting authority specifies "Brand X paint" or "Type Y system" in its specification, competition is restricted from the outset to the providers of that product. Competitors who could offer equivalent products are effectively excluded.

The "or equivalent" exception: Where a sufficiently precise and generally intelligible description of the subject matter of the contract is not possible without referring to a specific product, a reference product may exceptionally be named – but mandatorily accompanied by the words "or equivalent". Bidders may then offer to use products from other manufacturers, provided that these have the same or comparable functions, qualities and characteristics. The contracting authority must objectively examine equivalence.

Significance and function

Product neutrality safeguards competition in the procurement procedure by preventing technical specifications from being used as a hidden instrument to favour certain providers or to eliminate competitors.

Legal classification: The principle of product neutrality is a specific manifestation of the general principle of non-discrimination and equal treatment. A violation may give rise to a complaint in review proceedings and, in serious cases, lead to annulment of the procurement procedure.

Proof of equivalence: If an undertaking offers an alternative product, it bears the burden of demonstrating equivalence. However, the contracting authority must transparently set out the equivalence assessment criteria in the procurement documents. A blanket rejection of equivalent products without objective examination would breach procurement law.

Technical standards and norms: References to technical standards must also be product-neutral. Art. 42(3) of Directive 2014/24/EU provides for a hierarchy: European standards (EN) are to be used first, followed by European technical assessments, then international standards (ISO) and, only on a subordinate basis, national standards – and always with the addition "or equivalent".

National implementation:

• Austria: § 97 BVergG 2018 implements Art. 42 of the Directive; the Federal Procurement Commission (BVK) and the Federal Administrative Court have given concrete shape to the product neutrality requirement in several decisions.
• Germany: § 31(6) VgV enshrines the product neutrality requirement for above-threshold awards; § 7 EU(4) VOB/A for works awards; UVgO § 23 for the sub-threshold area.

Exceptions: In addition to the reference product with the "or equivalent" addition, there are other exceptions which must be interpreted narrowly in individual cases, e.g. for replacement procurements where compatibility with existing infrastructure is objectively necessary, or where it is demonstrably technically impossible to describe the requirements in a product-neutral manner.

Legal basis

The principle of product neutrality is conclusively regulated in Art. 42 of Directive 2014/24/EU and transposed into national law.

• EU: Art. 42(3) and (4) Directive 2014/24/EU; Art. 60 Directive 2014/25/EU
• Austria: § 97 BVergG 2018 (technical specifications); ÖNORM A 2050 (award of contracts)
• Germany: § 31(6) VgV; § 7 EU(4) VOB/A; UVgO § 23(5)

Related terms

• Equal treatment principle
• Non-discrimination
• Quality label
• Green procurement
• Bill of quantities
• Award criteria
• Tender
• Review proceedings

FAQ

May a contracting authority specify a particular software solution if a corresponding infrastructure already exists? The compatibility requirement with existing infrastructure may justify an exception to product neutrality in individual cases. However, the contracting authority must demonstrate that the compatibility requirement is objectively necessary, economically proportionate, and that no other product-neutral solution is possible. A blanket reference to existing systems is not sufficient.

What does "equivalent" mean for reference products? Equivalent means that the alternative product meets the requirements and characteristics defined in the specification in a comparable manner. Equivalence must be assessed on the basis of objective, pre-communicated criteria. Minor technical deviations that do not affect functionality may not lead to rejection.

Who bears the burden of proof for the equivalence of an alternative product? The bidder offering an alternative product must demonstrate equivalence. They may submit technical data sheets, test reports, certificates or other suitable evidence. The contracting authority must examine this evidence objectively and reasonably and may not reject it without sufficient justification.

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Last updated: January 2026 All information without guarantee. For legally binding advice, please consult a law firm specialising in public procurement law.