Specifying for Public Agency

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Author Message Anonymous   Posted on Thursday, June 10, 2004 - 05:38 pm:    I've recently been hired by a large Florida public agency. My previous positions have been private sector. To my surprise, the specs I've inherited are mostly proprietary. My supervisor says our specs are OK as is. I'm familiar with CSI MOP section on Specifiying for Federal Government and when proprietary is acceptable, we generally don't meet the CSI criteria. I've spoken to several other districts in Florida and they're just as proprietary, saying that's how they've always done them. Is there anyone in Florida that knows? Can someone point me to a Florida Statute or similar that allows a public agency to be proprietary? Ronald L. Geren, RA, CSI, CCS, CCCA Senior Member Username: specman Post Number: 36 Registered: 03-2003 Posted on Thursday, June 10, 2004 - 06:15 pm:    What do you mean by proprietary? Do the specs list only one manufacturer and/or product? Or, do they list one manufacturer and/or product as a "basis-of-design" (BOD) and then list two or more other approved manufacturers? You don't have to list every manufacturer and product that's out there that will do the job. Sometimes, proprietary specifying is permitted if adding to an existing system, or matching existing construction. Most of my work is public, and I make sure that I either list three acceptable products, or I provide a BOD product with two or more acceptable manufacturers that provide comparable products. However, with the BOD method, you should identify the salient features of the BOD product. This will allow you to make a fair comparison with other comparable products that may be submitted. David Stutzman Senior Member Username: david_stutzman Post Number: 22 Registered: 07-2002 Posted on Thursday, June 10, 2004 - 06:33 pm:    Be careful specifying Basis of Design products. Some agencies are insistent on requiring the names of specific products from 3 manufacturers, not just manufacturer's names if any product is named. It puts a burden on the specifier or architect to research the 3 acceptable products before the documents are issued for bid. Jim Brittell (Unregistered Guest) Unregistered guest Posted on Thursday, June 10, 2004 - 06:48 pm:    Does Division 1 include provisions for substitutions? It is acceptable for public work in California to list products by manufacturer and model as long as there is an "or equal" provision that allows any comparable product. David Jay Feinberg, AIA (Unregistered Guest) Unregistered guest Posted on Thursday, June 10, 2004 - 10:28 pm:    Refer to Fla. Statute 1013 for School Districts info. Most school districts have a policy against Proprietary products and give methods of specifying them in the Criteria books Anonymous   Posted on Friday, June 11, 2004 - 08:54 am:    Mr. Feinberg: I have just checked Florida Statutes 1000 through 1013 and could not find anything dealing with methods of specifying. Did I miss it or could you be more specific. Thanks! Doug Brinley Senior Member Username: dbrinley Post Number: 12 Registered: 12-2002 Posted on Friday, June 11, 2004 - 08:21 pm:    You gotta be more clear about what you're identifying as proprietary specifying. FF/120 (MOP) tells us we can go 'open' or 'closed'. Our agencies (Washington State) discourage 'closed' proprietary specification. Remember you can allow substitution - that is 'open'. This is where 'basis of design' as a concept comes from. It's just a more clear, honest way of communicating 'open specification'. D. Stutzman is right IMHO - be careful to limit basis of design specifying to simple items that can be interchangeably incorporated without impact to systems. Who bears the burden of coordination? Incidentally, our client agencies prepare a waiver request when they must have products from a single source or manufacturer. The waiver request is an internal agency protocol which informs the contracting/procurement arm of the agency that administrative oversight needs to be provided. The contracting arm can refuse to honor the waiver. There are adminstrative laws in place that govern that activity. We employ that process only when we need it. This is important - it is possible, even after a project is constructed, that a hostile party may bring suit on the agency for improper contracting procedures. This is where a consultant to your agency would perhaps help shield the agency from itself. It's naive in my opinion that a project manager in a public environment would be successful in defending a longstanding acceptance of closed proprietary specifications. Sounds like a good way to augment my retirement fund... Anonymous   Posted on Monday, June 14, 2004 - 11:57 am:    The specifications I refer to would be considered "closed proprietary". Sometimes listing 1, 2, or more brand names, along with decriptive and ref standard data, but quite often failing to also offer the option of consideration of substitution (the "or equal"). So isn't this practice restrictive and frawned upon by public agencies? Doug Brinley Senior Member Username: dbrinley Post Number: 14 Registered: 12-2002 Posted on Monday, June 14, 2004 - 12:27 pm:    Email me your worst example. Doug@kpg.com I'm not a lawyer, but it is my understanding, having been both a specifier and a product representative, that not only are closed specifications onerous in that case, but that a legitimate bidder excluded from bidding would probably be entitled to damages and penalties. In Washington State, that is the subcontract amount as if it was awarded, then multiply times three, then add legal fees. It might be worthwhile for a few specifiers to get together, set up a couple flooring businesses in your area, submit some bids to your agency, and call our attorneys. I want a new boat. (I'm kidding) Doug Brinley Senior Member Username: dbrinley Post Number: 15 Registered: 12-2002 Posted on Monday, June 14, 2004 - 12:31 pm:    The manner in which the specification (the contract) is administered is very important to your case. If the architect is using the specification to ferret out a lot of non-responsive subcontractors, he or she may be 'bending the rules' via the documents, then perhaps they are administering the contract more loosely. It would be difficult I think to fault that approach, as there would be a history of subcontractors having made substitution although the contract documents may not have clearly indicated that. What does your Section 01600 indicate? Anne Whitacre, CCS CSI Senior Member Username: awhitacre Post Number: 92 Registered: 07-2002 Posted on Monday, June 14, 2004 - 02:39 pm:    Keep in mind that also in Washington State, and with various other agencies,that specs can be issued for a closed system if it is in the "owner's interest" to do so. I'm thinking particularly of roofing systems in school districts and other public buildings; the justification is that the Owner's staff is already familiar with the maintenance procedures, has the maintenance materials, and has an ongoing multi-facility maintenance agreement in place. Its also possible to bid "sole source" for some agencies if you can demonstrate that there are multiple vendors/subcontractors for the product/system in that area: for instance, one particular roofing system, but 5 subcontractors. Some agencies will consider that enough competition and allow that particular item to be sole-sourced. The Owner has to be willing to back up the design decision however -- we certainly can't override them on any issue regarding bidding and contracting. Dave Metzger Senior Member Username: davemetzger Post Number: 77 Registered: 07-2001 Posted on Monday, June 14, 2004 - 05:28 pm:    A similar situation to what Anne notes is with cylinders and cores for door hardware. For federal government agencies in particular, they may have unique keyways and be "locked" into a specific manufacturer. There can be open competition for the lockset manufacturer, but the cylinders must be proprietary. Robert Swan (Unregistered Guest) Unregistered guest Posted on Tuesday, June 15, 2004 - 03:25 pm:    Anonymous: Do you have access to the Bid Requirements and General Requirements of your agency? Normally the requirements of products and substutions are defined in the "Front End" sections not the technical sections. Public agencies do not normally have closed specifications. Anonymous   Posted on Wednesday, June 30, 2004 - 05:11 pm:    I'm new to the Public arena. I've just inherited 44 of 75 Arch spec sections that are closed proprietary. Meaning sections with one or more brand names listed, but with no provisions for substitutions (closed proprietary, right?) I know Public agencies can be closed proprietary when: 1. No other way to specify. 2. Matching existing system or component. 3. Spec brand name for only for basis of comparison. 4. Substitutions are considered. Before I open our specs and put us in the substitution business, I'd still like to find allowable methods to specify for Florida Public Agencies (i.e. state statutes, I've checked more than 1,000 already)...everyone tells me its out there somewhere, but I still haven't found? Help! John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 230 Registered: 03-2002 Posted on Thursday, July 01, 2004 - 08:53 am:    The mere fact that only one or two brands are listed may not necessarily mean that they are proprietary specifications. If there are other manufacturers who make the product, and the specifications do not have language indicated that only the listed products are permitted (or if there is some sort of "or equal" language), then they are not proprietary. (Of course, there will be exceptions. In Massachusetts, the law requires that three products be listed, as well as the expected prohibition on proprietary specs. I'm sure other jurisdictions have other specific requirements. Also, in Massachusetts, a public entity may only use a proprietary product if 1> it is in the public's interest and is not done out of convenince or mere preference, and 2> the board of the awarding authority takes a public vote to permit the proprientary product.) The language of Section 01600 - Product Requirements regarding the use of products that aren't specifically listed also affects how "proprietary" a section is. Merely because a product isn't specifically listed does not necessarily mean a substitution request is necessary. Again, this is governed by the language of 01600 in conjunction with the wording of the individual section's product listing. Use of a non-listed product is many circumstances can be handled through the ordinary submittal process. Specifications can be written to distinguish between these two results, so you can get substitution requests for those products where you want the most control. Anonymous   Posted on Thursday, July 01, 2004 - 09:32 am:    John, thanks for your reply. Our Div-1 documents say: Single Product/Manufacturer Named: Provide product named unless "equivalent" products are indicated. Two or More Product/Manufactuer Named: Provide one of the named products at the builders option, unless "equivalent" products are indicated. Sounds to me that where no indication of "equivalent" is stated, that those sections are closed propreitary, right? Phil Kabza Senior Member Username: phil_kabza Post Number: 52 Registered: 12-2002 Posted on Monday, July 05, 2004 - 04:41 pm:    Anonymous, Did you ever get an answer to your original question? Florida's statutes are all online. Anonymous   Posted on Thursday, July 08, 2004 - 08:42 am:    Phil I have checked over 1,000 Florida statutes online, but to no avail. Everyone keeps saying it's out there somewhere, but no one else seems to know either. Anonymous   Posted on Thursday, July 08, 2004 - 05:36 pm:    Earlier this year I happened by chance on the standard specs of the University of Florida, Jacksonville. I don't recall the URL, but it shouldn't be hard to find. You might find the answer or at least a clue in its Division 1 or General Conditions as well as examples in the tech sections.