The famous phrase... "or equal"

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Author Message Robin Treston (Unregistered Guest) Unregistered guest Posted on Sunday, September 28, 2003 - 10:49 am:    I recently had an architect client ask me about CSI's position on using the phrase "or equal". I can't recall if this is addressed anywhere, but I don't have my MOP available and am looking for input. Their client wants "or equal" put into the specs, even where I have listed 3+ manufacturers. The statutes for the state call for a minimum of 2 manufacturers for public work. If only one is listed, then "or equal" must be used, but that isn't a issue for these specs. Is there and industry position on this? Or, what are your thoughts? Thanks! Phil Kabza Senior Member Username: Phil_kabza Post Number: 21 Registered: 12-2002 Posted on Sunday, September 28, 2003 - 08:52 pm:    Robin, Thank you for initiating what promises to be a long and hearty thread. The CSI Manual of Practice addresses the issue of use of the phrase "or equal" in FF 120 Methods of Specifying (Page 9). When this phrase is used in Part 2 of product specifications, it opens the door for the Contractor to submit any product that in their opinion is "equal" to the named manufacturers/products - during submittals. The A/E then does battle with the Contractor to prove that the product is not "equal," whatever that means. The MOP encourages the use of properly specified substitution procedures during bidding and then after award - either, or both. This allows the A/E to control the substitution procedure. The phrase "or equal" is generally considered outmoded and discredited. The phrase "or comparable product" allows the specifier to evaluate the substitution request against the characteristics of the named product and especially against the salient characteristics listed in the project specification. I suggest you name your products, then indicate "Substitutions per Instructions to Bidders" (if allowed during bidding), or "Substititions per Division 1 General Requirements" if allowed for a named period of time following award. This is redundant, and MOP purists point out it isn't necessary to say this. But your Owner can see it and feel better. Savvy A/Es write their design agreements to compensate themselves for their time in evaluating substitution requests. After all, it is a service to the Owner with the intent of saving the Owner money. In that case, require bids to conform to the listed products, and wait until you get compensated to evaluate products. And never evaluate substitutions for free as part of the submittal process. DennisHall (Unregistered Guest) Unregistered guest Posted on Monday, September 29, 2003 - 08:30 am:    What does "or equal" mean? It depends: - equal color selection - equal cost - equal function - equal warranty - equal properties Which properties? - speed - elastisity - finish - solids content - etc. Equal to who? - Owner - Architect - Contractor - Subcontractor - Specifier In order to meet the definition of "or equal" if given in terms of a descriptive specification, how many of the attributes described does it require to meet this definition? And which ones? The same question could be asked about reference standard specifications. I avoid this term like the plague. If your architects wishes to include it in the project manual, he must first define the term so it can be fairly understood and enforced. The project will be constructed before this action happens and you are off the hook until next time. About 50% of the manufacturer's reps that I see tell me that their product has "no equal" and should be specified as a single proprietary product. The rest of the liars tell me that their products are "equal" to anything anyone else produces that looks something like their product or has a similar name. Therefore if we believe what we are being told , basicly there is "no equal" to any product unless all products are "equal." When you figure that out let me know because I don't understand either. Ronald L. Geren, RA, CSI, CCS, CCCA Senior Member Username: Specman Post Number: 15 Registered: 03-2003 Posted on Monday, September 29, 2003 - 12:29 pm:    Robin: I prefer the "comparable" method over the "or equal" as well, since many products are, by the strictest definition of equal, not equal. However, if you're using MasterSpec, they define "comparable" as a product that is "approved through the submittal process" or "where indicated as a product substitution." I, for one, would not like to have any product that the contractor considers "comparable" coming to me through the submittal process. I do this for a couple of reasons: 1) If you disapprove a product during the submittal process, the contractor will likely complain about delay of the project, and 2) The information provided in a submittal package usually isn't enough to do a good comparison. I have modified that paragraph to require "all" comparable products be submitted as substitution requests (MasterSpec's paragraphs on comparable product requests are weak). I further add in the "Substition Request" paragraphs that substitutions requests be made in sufficient time for A/E review, and for contractor resubmittal of another product, if not approved. Jim Brittell, AIA, CSI (Unregistered Guest) Unregistered guest Posted on Tuesday, September 30, 2003 - 05:23 pm:    In California, the Public Contract Code, Section 3400 requires that any specification that lists brand or trade names must list at least two such names followed by the words “or equal”. There are a couple of exceptions to this, but that is the basic rule. I agree with Dennis’s comments – determining what is or is not equal is a pain, but the requirements of the PCC are pretty clear. The only way specifiers can protect themselves is to define “or equal” in Division 1 and list the salient features of the products in each section. Still, it’s a large burden on the specifier and the Owner in terms of managing the construction process, i.e. the dreaded substitution request form…. John Regener, AIA, CCS, CCCA, CSI, SCIP Senior Member Username: John_regener Post Number: 112 Registered: 04-2002 Posted on Tuesday, September 30, 2003 - 08:38 pm:    Jim Brittell hit on the key to dealing with "or equal" and that is to define in Division 1 what it means. I include some extensive language in Section 01600 - Product Requirements about the "or equal" provision. And I also do some extensive specifying of the substitution process. Another option is to use Section 01630 - Product Options and Substitutions. At the West Region CSI Conference last week, in the education session titled "Extreme Specifying", we got into a substantial discussion about "or equal" and substitution request forms. It's a hot topic. Anonymous   Posted on Tuesday, September 30, 2003 - 09:25 pm:    What happened to using the phrase "or approved equal" and defining the person making the approval is the A/E? John Regener, AIA, CCS, CCCA, CSI, SCIP Senior Member Username: John_regener Post Number: 113 Registered: 04-2002 Posted on Wednesday, October 01, 2003 - 12:20 am:    "or approved equal" as opposed to "or unapproved equal"? In accordance with the "say it once" principle of spec writing, in a Division 1 Section define what the phase "or equal" or "or approved equal" or "or comparable" or "or equivalent" means and specify the process for determining whether the "or equal" etc. product is okey-dokey (to put in technical terms). Define who makes the determination (architect? construction manager? owner's representative?). And define the process for making the determination (during submittals review? require a formal substitution request?). The key is specifying what "or equal" means. And that can vary according to the contract provisions and applicable codes, laws and policies. David Axt, AIA, CCS, CSI Senior Member Username: David_axt Post Number: 180 Registered: 03-2002 Posted on Wednesday, October 01, 2003 - 03:49 pm:    Years ago, there was a roofing distributor whose name was "Or Equal". I believe they did this to automatically be included in a spec if someone specified, ".....or equal." Pretty darn sneaky if you ask me. David R. Combs, CSI, CCS, CCCA (Unregistered Guest) Unregistered guest Posted on Thursday, October 02, 2003 - 08:58 am:    I have not used the phrase "or equal" for about 8 or 9 years, as its use seems to have been outmoded and even discouraged. I have also been requiring all consultants to purge it from their documents as well. We have been using "or acceptable substitution" instead. More specifically, after the list of manufacturers in Part 2, the very next line reads "Acceptable substitution, in accordance with provisions of Section [01600] [01630]." It clears up the ambiguity inherent with the "or equal" version, and automatically tells the contractor, subcontractor, supplier, and manufacturer that if they don't see their name, they go directly to 01600/01630. Do not pass 'Go;' do not collect $200. As mentioned in a previous post, the MOP purists may not agree, and may see this method as redundant, but I've never gotten an argument from a contractor on subjectivity or appropriateness issues. John Bunzick, CCS, CCCA Senior Member Username: Bunzick Post Number: 141 Registered: 03-2002 Posted on Thursday, October 02, 2003 - 09:22 am:    We have recently started to use a method very similar to the one David describes. However, for products where the submittal process is sufficient to vet out suitability, we don't specifically require the substitution request. For those products where we do need to go through that process, we specifically state it as David suggests. Haven't really put it through its paces yet, so we'll see how it works. Even though I've worked on public projects for years, I've been fortunate not to have had many battles over substitutions. I have generally relied on carefully prepared descriptive specs, backed up by research so I know we have three products. Where I can, I've listed more than three, sometimes as many as five, specific manufcaturers and models. In that situation, I've never had a substitution request. Kenneth C. Crocco New member Username: Kcrocco Post Number: 1 Registered: 04-2003 Posted on Thursday, October 02, 2003 - 04:33 pm:    Or Equal: I would like to agree with many of the items stated, but it just ain't necessarily so, as they say. I would never recommend the use of "or equal", not because it is not defined, but because it is defined. We use or equal is when legislation requires it (procurement law). When it is required by procurement law it must be used when brand names are specified, or else. When it is required for open and competitive specifications, it is defined. Whether "or equal" or "or approved equal" it means (generally) products equal to the salient requirements listed in the specification. If you don't list any requirements, then you have a very open specification. If you list too many requirements, then you have a closed specification masquerading as an open and competitive specification. This is obviously against the rules of legislated procurement. We specifiers cannot do what we believe to be correct just by changing the words. We can certainly try and sometimes do get by when no one notices. But usually, competitive manufacturers paying attention notice. Some jurisdictions do not allow "or equal", but subtitute other restrictions to keep the open and competitive specification. Or equal is an unfortunate attempt to keep public specifications open and competitive. Organizations like CSI and AIA should strive to get it out of procurement rules and replace it with good specification writing practice. John Bunzick, CCS, CCCA Senior Member Username: Bunzick Post Number: 142 Registered: 03-2002 Posted on Friday, October 03, 2003 - 09:43 am:    California Public Contract Code Section 3400, as referenced above, does indeed require the words "or equal". But that same code also states that agencies establish a time frame for "submission of data substantiating a request for a substitution of 'an equal' item." This seems pretty clear that agencies and their design consultants can establish a substitution procedure to control the determination of what constitutes "or equal." The law does not actually define what is considered equal. Massachusetts has similar provisions in it's public construction law, M.G.L. Chapters 30 and 149. My reading of these laws is that we must select products in a way that allows broad and open competition, but that doesn't mean we're forced to allow products that cannot perform onto a project. We also don't have to pick poorly performing products just to be sure we have three. Cal P.C.C. Section 3400 again: "In those cases involving a unique or novel product application required to be used in the public interest, or where only one brand or trade name is known to the specifying agency, it may list only one." We just have to do our job well to comply. Robert E. Woodburn, RA, CCS, CCCA,CSI Senior Member Username: Bob_woodburn Post Number: 18 Registered: 05-2003 Posted on Friday, October 03, 2003 - 10:52 am:    John, speaking of Massachusetts' "or equal" law, last year while doing some product research on the web, I ran across an interesting case involving this law which illustrates the potential pitfalls when an "or equal" spec ends up in court. Not a pretty picture. This case may be as relevant an example as any, and, for those who must specify under such laws (or are just curious...), it's worth a look. Here are three links that probably tell the story as well as any... The Massachusetts publication, "Proprietary Specifications in Public Construction Projects": http://www.state.ma.us/ig/publ/proprpt.pdf The appeals court's opinion, including a summary of the case: http://www.socialaw.com/appslip/98p0855.html A summary and commentary in a law firm newsletter: http://www.smithcurrie.com/csc17No1.htm Sorry, I don't know how to make these live links. Just paste them into your browser's address line... Robert E. Woodburn, RA, CCS, CCCA,CSI Senior Member Username: Bob_woodburn Post Number: 19 Registered: 05-2003 Posted on Friday, October 03, 2003 - 11:00 am:    (In the newsletter link, http://www.smithcurrie.com/csc17No1.htm, look for: "436 Undisclosed Proprietary Item - Who Pays?") John Bunzick, CCS, CCCA Senior Member Username: Bunzick Post Number: 143 Registered: 03-2002 Posted on Friday, October 03, 2003 - 12:21 pm:    I have read about this case before, and it only affirms my view of the or-equal provisions: it places an affirmative requirement on the awarding authority and designer to actually find competitive products. Sometimes this is hard, but often it's not really. I don't know what 'safety features' for the exhaust system were required by the fire department in the case cited, but my experience is that sometimes features that are claimed to be 'essential', are really not -- they may be a way to get around the public bidding laws. I have this discussion regularly with designers - no covert proprietary product selection. Also, since designers must go to the awarding authority for approval of proprietary specs, and owners think that they can't do this (because they have lousy attorneys who don't know construction law) there is pressure to try to get by with a "fake" open specification. (Sometimes awarding authorities want a proprietary product themeselves, occasionally for reasons that don't hold up to legal scrutiny, but they won't take the necessary steps themselves.) So, like I said, if we do our job and don't monkey around with the law like the designer and town in the cited case, it works fine. I'm not familiar with any claims were the law was followed - use proprietary only when you really need it, and document it properly. I could get into some of the nuances of the Inpsector General's opinion, but I don't want to put everyone asleep.