Chapter 2 — Research and development procurementProposed — COM(2026) 567
Article 18 — Formulating requirements for the characteristics of the procured R&D services
In brief
This article tells public buyers how to describe what they want from procured research and development services. Requirements must be set out in a fixed order of precedence, applied characteristic by characteristic, and generally drafted so that a tenderer can prove compliance through any equivalent evidence. The aim is to keep specifications open rather than tied to a single solution or supplier.
Key points
Requirements follow an order of precedence: those mandated by law, then functional, then performance, then design requirements, applied to each characteristic individually.
Performance or design requirements may only be used where drafting a functional requirement is impracticable.
Where a characteristic is not covered by law and cannot be sufficiently described otherwise, buyers may refer to standards in a set order, each accompanied by the words ‘or equivalent’ unless the reference is to mandatory harmonised technical specifications.
Procurement documents must not point to a specific make, brand, patent, trademark or origin that would favour or exclude particular operators or products, save for a narrow, justified derogation with ‘or equivalent’ added.
What it means in practice
Contracting authorities running R&D procurement will need to structure their specifications around outcomes and functions before reaching for prescriptive design details, and to document why a lower-precedence requirement was necessary. For innovative firms, start-ups and SMEs, this is intended to widen the range of solutions that can be offered and to allow alternative equivalent evidence of compliance, reducing the risk of specifications drafted around one incumbent’s product.
Anthony Bochon’s analysis
What strikes me first in this provision is the deliberate order of precedence it imposes: legal, then functional, then performance, then design requirements, applied characteristic by characteristic. This is the classic public-procurement logic of the 2014 directives pushed one step further, because in genuine R&D the buyer often does not yet know the technical solution it needs; forcing functional drafting keeps the field open to approaches the buyer never imagined, which is precisely the point of innovation procurement. In my practice advising innovative firms, the sentence that will matter most is the one allowing tenderers to prove compliance by any alternative equivalent evidence, together with the standards hierarchy and the anti-branding rule in paragraph 4 that echoes the well-established prohibition on references favouring a specific operator.
My reading is that the real discipline here falls on the public buyer: performance or design requirements are only lawful where a functional formulation is genuinely impracticable, and that impracticability will have to be documented if it is to survive review. I would watch how the notion of “common specifications” adopted by the Commission develops, as it quietly imports a new layer of Union technical governance into procurement; addressees should build their tender files now around functional narratives and “or equivalent” evidence rather than off-the-shelf brand compliance.
Official text — Article 18 (COM(2026) 567)
1. Public buyers shall formulate the requirements for the characteristics of the research
and development services to be procured and of their intended results in the
procurement documents in the following order of precedence:
(a) requirements mandated by law;
(b) functional requirements;
(c) performance requirements;
(d) design requirements;
Public buyers shall apply the order of preference set out in the first subparagraph to
each characteristic individually.
Unless otherwise provided in a pplicable Union or national law, public buyers shall
draft all requirements referred to in this paragraph in a manner that allows the
tenderer to prove compliance by means of any alternative equivalent evidence.
2. Public buyers shall only formulate a req uirement as a performance requirement, or
design requirement, where it is impracticable to draft such requirement as a
functional requirement.
3. Where for a specific characteristic there is no requirement mandated by law and
where a specific characterist ic cannot be sufficiently described through the
requirements in paragraph 1, the requirements for that characteristic may be
formulated in any of the following ways by reference, in order of precedence, to:
(a) harmonised standards , as well as standards and standardisation deliverables
the references of which have been published for the purpose of this paragraph
in the Official Journal of the European Union or by any other means as
provided in accordance with Union legislation and common specifications,
understood as a technical specification other than a standard and adopted by the
Commission, and the conformity with which provides for a presumption of
conformity with the requirements set out in the relevant Union legislation;
(b) European standards as d efined in Article 2 of Regulation (EU) No 1025/2012,
including national standards transposing European standards;
(c) European Assessments Documents;
(d) international standards;
(e) other standardisation deliverables established by a European standardisation
organisation as defined in Regulation (EU) No 1025/2012;
(f) where any of the references listed in points (a) to (f) does not exist, national
standards, national technical approvals or national technical specifications.
Each reference shall be accompanied by the words ‘or equivalent’ unless the
reference is made to mandatory harmonised technical specifications.
4. Public buyers shall ensure that the procurement documents do not refer to a specific
make, brand name or source, or a particular process which characterises the products,
services or works provided by a specific economic operator, or to trademarks,
patents, types or a specific origin or production with the effect of favo uring or
eliminating certain economic operators or products, services or works.
By way of derogation from the first subparagraph, such references shall only be
allowed where a sufficiently precise and intelligible description of the subject -matter
of the R&D procurement contract pursuant to paragraph 1, 2 and 3 is not possible.
Public buyers shall not derogate from this obligation unless justified by the subject
matter of the R&D procurement contract, and in that case, the reference shall be
accompanied by the words ‘or equivalent’.
Source: European Commission, proposal for a Regulation establishing the European Innovation Act, COM(2026) 567 final, 9 September 2026. Read the official proposal (PDF). Text may change during the legislative process.
Anthony Bochon’s analysis
What strikes me first in this provision is the deliberate order of precedence it imposes: legal, then functional, then performance, then design requirements, applied characteristic by characteristic. This is the classic public-procurement logic of the 2014 directives pushed one step further, because in genuine R&D the buyer often does not yet know the technical solution it needs; forcing functional drafting keeps the field open to approaches the buyer never imagined, which is precisely the point of innovation procurement. In my practice advising innovative firms, the sentence that will matter most is the one allowing tenderers to prove compliance by any alternative equivalent evidence, together with the standards hierarchy and the anti-branding rule in paragraph 4 that echoes the well-established prohibition on references favouring a specific operator.
My reading is that the real discipline here falls on the public buyer: performance or design requirements are only lawful where a functional formulation is genuinely impracticable, and that impracticability will have to be documented if it is to survive review. I would watch how the notion of “common specifications” adopted by the Commission develops, as it quietly imports a new layer of Union technical governance into procurement; addressees should build their tender files now around functional narratives and “or equivalent” evidence rather than off-the-shelf brand compliance.