California Public Bid - Are 3 "Equive...

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Author Message Nathan Woods, CCCA, LEED AP Senior Member Username: nwoods Post Number: 361 Registered: 08-2005 Posted on Thursday, November 04, 2010 - 11:31 am:    It's a basic question, but conventional practice on public bid projects in California has been to list three equivalent mfr's for any given product. Is this practice something that's actually required, or just what the industry has been doing as a habit? If you have any way to substantiate your thoughts on this, I'd greatly appreciate it. Wayne Yancey Senior Member Username: wayne_yancey Post Number: 373 Registered: 01-2008 Posted on Thursday, November 04, 2010 - 11:49 am:    Nathan, Nice scooter. It is typical public policy when spending the tax payers money and wanting to create the appearance of fair competition. Some disgruntled party will cause no end of heartburn if they are omitted accidently or accidently on purpose. Just because. One government client I am familiar with states in the guidelines to specifiers: "Specs should typically reflect a non-proprietary approach to specifying products. Avoid specifying trade names if the required quality/performance can be obtained with a non-proprietary specification. If trade names are used, specify names of at least three acceptable, competitive, products. Discuss with, and obtain approval from, Procurement Section staff before specifying only a single trade name. "When specifying a product by trade name, always include a cross-reference to the Division 01 Section entitled 'Product Options and Substitutions'." I assume this is intented to appease the offended party and leave the door open. Wayne Richard L Matteo, AIA, CSI, CCS Senior Member Username: rlmat Post Number: 403 Registered: 10-2003 Posted on Thursday, November 04, 2010 - 11:57 am:    I second Wayne's comment on your "scooter" You actually fit in that ? As to your question - It varies within my specs. In some cases, if I can list 3 or more products/manufacturers, that I know are equal, I will If I am unable to find 3, I will list whoever I can find that I am comfortable with. Generally, if I want a specific product, to avoid upsetting someone (especially if I don't know they're out there) I list the preferred product as "Basis of Design" and then allow them to submit alternative products for the Architect's review under the substituion request process. (Unregistered Guest) Unregistered guest Posted on Thursday, November 04, 2010 - 11:43 am:    I know that you are asking about California, but Washington state has no such requirement. I have a running bet, for those in my office who beg to differ, to prove to me otherwise. I think that it is just convention that we list 3 products on public bid projects. I too would like to know if any state requires 3 equivalent products. Dave Metzger Senior Member Username: davemetzger Post Number: 380 Registered: 07-2001 Posted on Thursday, November 04, 2010 - 12:06 pm:    Yes, Virginia does. And not a basis-of-design product and two other equivalent manufacturers. They require three specific product names/models, and Virginia-made products must be listed first. Makes hardware sets fun. Nathan Woods, CCCA, LEED AP Senior Member Username: nwoods Post Number: 362 Registered: 08-2005 Posted on Thursday, November 04, 2010 - 12:08 pm:    LOL, not my car, I just find it funny that my wingspan equals the total length of a SmartCar. I would never drive one. I have seen how they do in collisions, and without sufficient power to avoid a collision...well, I'm not a gambler. As for your comments, they are consistent with our general practice and understanding now as well, but these are client based requirements, not governmental requirements. I am trying to find out if the uniform commerical code or some other regulation has a requirment along these lines. If not, it seems that we could simply state our basis of design, or equivelent, without having to list 3 specific mfr's. I am not advocating that as prudent practice. I am just stating that it would appear to be legal....unless there is a controlling regulation that I have not been able to find. Richard A. Rosen, CSI, CCS, AIA Senior Member Username: rarosen Post Number: 85 Registered: 08-2006 Posted on Thursday, November 04, 2010 - 12:10 pm:    Pennsylvania DGS requires multiple specified products, they prefer at least 3. They also have a clause in the instructions to bidders and in the products section that states that "or equal" is explicitly implied for all named products. For work that is an extension of an existing system (eg. alarms, cable tv systems, etc.) or if there is only one manufacturer in the whole world an approval for a propriatery manufacturer is required from the Director of DGS. PA DGS is also still using MF 1995. Nathan Woods, CCCA, LEED AP Senior Member Username: nwoods Post Number: 363 Registered: 08-2005 Posted on Thursday, November 04, 2010 - 12:20 pm:    I think I may have found the relevation sections in the California Public Contract Code: PUBLIC CONTRACT CODE SECTION 3400-3410 http://law.justia.com/california/codes/2009/pcc/3400-3410.html "(b) No agency of the state, nor any political subdivision, municipal corporation, or district, nor any public officer or person charged with the letting of contracts for the construction, alteration, or repair of public works, shall draft or cause to be drafted specifications for bids, in connection with the construction, alteration, or repair of public works, (1) in a manner that limits the bidding, directly or indirectly, to any one specific concern, or (2) calling for a designated material, product, thing, or service by specific brand or trade name unless the specification is followed by the words "or equal" so that bidders may furnish any equal material, product, thing, or service. In applying this section, the specifying agency shall, if aware of an equal product manufactured in this state, name that product in the specification. Specifications shall provide a period of time prior to or after, or prior to and after, the award of the contract for submission of data substantiating a request for a substitution of "an equal" item. If no time period is specified, data may be submitted any time within 35 days after the award of the contract." Main index is here: http://law.justia.com/california/codes/2009/pcc.html Nathan Woods, CCCA, LEED AP Senior Member Username: nwoods Post Number: 364 Registered: 08-2005 Posted on Thursday, November 04, 2010 - 12:22 pm:    LOL, Relevant, not Revelation. Perhaps I was overly excited when I found the answer.... David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 1144 Registered: 03-2002 Posted on Thursday, November 04, 2010 - 12:36 pm:    Oops for some reason I lost my registration. I am the unregistered guest above. BTW, I have never been in trouble for having fewer than 3 products in my specs. Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 325 Registered: 10-2007 Posted on Thursday, November 04, 2010 - 01:53 pm:    This requirement is not enforced and in fact the practice is discouraged by some government agencies. In order to satisfy DSA, the agency that plan checks public schools, you are essentially forced to specify the manufacture and product style for a number of products such as wood I-joists, joist hangers, and expansion bolts. I have never seen any push back with specifying these and other projects as sole source. It has not been standard practice to say "or equal" since the alternate design would require details to change. In one situation I processed a substitution to replace one manufacturer's I-joist with that of another. By the time I was done making the changes it cost them much more than they saved by going with the other manufacturer. The geometry of the joists differed, which required several details to be revised to show the new hardware. If we would have been required to specify multiple manufacturer's products there would have been additional design time. The drawings would also have to address the variations. John Bunzick, CCS, CCCA, LEED AP Senior Member Username: bunzick Post Number: 1263 Registered: 03-2002 Posted on Thursday, November 04, 2010 - 04:05 pm:    Massachusetts requires three products. They have to actually exist, whatever method of specifying is used. i.e., no saying "XYZ product or equal" unless there really are two others available. (Unregistered Guest) Unregistered guest Posted on Thursday, November 04, 2010 - 03:43 pm:    I work often with a local County level GSA that goes to extreme lengths to reinforce multiple equals. The only good news is that they will except 2 equals. They did point out that within their County, any "no subsitutions" spec line item must be approved in a public hearing of the County Board of Supervisors. So their bosses breath down their necks if aproject starts filling up the aggenda of the board meetings. We have long since mastered working with them, but I still chuckle at their zeal. They once commented on the "Commissioning" spec for the security system (literally the last page in the old DIV 1 - 16 format) where the Security consultant's spec sloppily read, "complete the form that follows this section with a Sharpie or similar permanent marker". The county's response, "PLEASE PROVIDE A LEAST TO EQUALS TO SHARPIE PEN, NO EXCEPTIONS". (Unregistered Guest) Unregistered guest Posted on Thursday, November 04, 2010 - 07:46 pm:    It doesn't really matter what Calif (or probably any other state) has as statutory law. You do whatever the public agency that you are "working" for, tells you to do..right? If they (i.e., public agency) say include, for example, five named products AND the words "or approved equal", are you going to argue with them, telling them public contract codes don't require you to? In this respect, I have always done what the public agency has requested....then they assume that responsibility. Ronald L. Geren, AIA, CSI, CCS, CCCA, SCIP Senior Member Username: specman Post Number: 883 Registered: 03-2003 Posted on Thursday, November 04, 2010 - 09:13 pm:    I think Unregistered Guest above is on the right track. In Arizona, the State Procurement Code of the Arizona Revised Statutes (ARS) states: "41-2566. Specifications prepared by architects and engineers: All specifications, including those prepared by architects, engineers, consultants and others for public contracts, shall seek to promote overall economy for the purposes intended and encourage competition in satisfying this state's needs and shall not be unduly restrictive." Then, for State agencies, the Arizona Administrative Code (AAC) establishes rules based on the State law: "R2-7-402. Utilization of Specifications: The agency chief procurement officer may use any type of specification that describes the procurement requirement and promotes competition, except that the agency chief procurement officer shall not use proprietary or restrictive specifications without the prior written approval of the state procurement administrator." and, "R2-7-403. Determination for Use of Brand Name Type Specifications "A. The state procurement administrator may authorize the use of a brand name only specification if the state procurement administrator makes a written determination that only the identified brand name item will satisfy the state's needs. "B. The agency chief procurement officer shall, to the extent practicable, identify sources from which the designated brand name item can be obtained and shall solicit such sources to achieve the maximum practical competition. "C. The agency chief procurement officer may use a brand name or equal specification when the agency chief procurement officer determines this type of specification is in the best interest of the state." Thus, based on the above the, the state agency procurement office can establish policy that is in compliance with the ARS and AAC provisions. Therefore, they can state "We want at least three products/manufacturers" and you must follow the agency's policy. Ron Geren, AIA, CSI, CCS, CCCA, SCIP www.specsandcodes.com John Regener, AIA, CCS, CCCA, CSI, SCIP Senior Member Username: john_regener Post Number: 477 Registered: 04-2002 Posted on Friday, November 05, 2010 - 01:14 pm:    Re: the original issue of California requirements for naming manufacturers. I found a source for Section 3400 of Public Contract Code that is an official State of California site: http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=9747472084+0+0+0&WAISaction=retrieve Section 3400 reads: ____________________ "CALIFORNIA CODES PUBLIC CONTRACT CODE SECTION 3400-3410 3400. (a) The Legislature finds and declares that it is the intent of this section to encourage contractors and manufacturers to develop and implement new and ingenious materials, products, and services that function as well, in all essential respects, as materials, products, and services that are required by a contract, but at a lower cost to taxpayers. (b) No agency of the state, nor any political subdivision, municipal corporation, or district, nor any public officer or person charged with the letting of contracts for the construction, alteration, or repair of public works, shall draft or cause to be drafted specifications for bids, in connection with the construction, alteration, or repair of public works, (1) in a manner that limits the bidding, directly or indirectly, to any one specific concern, or (2) calling for a designated material, product, thing, or service by specific brand or trade name unless the specification is followed by the words "or equal" so that bidders may furnish any equal material, product, thing, or service. In applying this section, the specifying agency shall, if aware of an equal product manufactured in this state, name that product in the specification. Specifications shall provide a period of time prior to or after, or prior to and after, the award of the contract for submission of data substantiating a request for a substitution of "an equal" item. If no time period is specified, data may be submitted any time within 35 days after the award of the contract. (c) Subdivision (b) is not applicable if the awarding authority, or its designee, makes a finding that is described in the invitation for bids or request for proposals that a particular material, product, thing, or service is designated by specific brand or trade name for any of the following purposes: (1) In order that a field test or experiment may be made to determine the product's suitability for future use. (2) In order to match other products in use on a particular public improvement either completed or in the course of completion. (3) In order to obtain a necessary item that is only available from one source. (4) (A) In order to respond to an emergency declared by a local agency, but only if the declaration is approved by a four-fifths vote of the governing board of the local agency issuing the invitation for bid or request for proposals. (B) In order to respond to an emergency declared by the state, a state agency, or political subdivision of the state, but only if the facts setting forth the reasons for the finding of the emergency are contained in the public records of the authority issuing the invitation for bid or request for proposals." ____________________ A couple of points: 1. Get and read the actual requirement governing product specifications. There are out-of-date versions floating around and there are construction managers, design professionals, contractors and suppliers who are misinformed and who issue directions not based on CURRENT and APPLICABLE requirements. 2. PCC Section 3400 has been modified in recent years. At least two provisions have been changed that significantly affect specifications that name manufacturers. One is the number of manufacturers who must be named. I don't find anything in Section 3400 that states a specific number. The other is the period of time in which alternatives to the named manufacturer will be acceptable. It's a huge "gotcha" for contractors and suppliers. I interpret it to mean, if you don't submit the alternative within 35 days of signing the contract, the substitution may be rejected out of hand and the (General) Contractor must provide the specified manufacturer. (I don't know if this has ever been enforced, but if I was the specified manufacturer, I'd sure try to use it to my favor.) 3. Frequently, I am directed by designers to specify only one manufacturer. Pointing out what State law requires is not met favorably. I become an "obstructionist". It is an on-going and very annoying struggle. 4. Note the exception for matching existing products. Sometimes this is very justified, such as matching existing door hardware or interfacing with an existing fire alarm system. Sometimes it is completely without justification, such as having to match the manufacturer of paints that will be used for maintenance ... brand name, not color. 5. What does "equal" mean? There are few proprietary products that are identical. I try to clarify this in the "Products Requirements" Section by using the term "equivalent." And I say a whole bunch more to expand on what is "equivalent." 6. Finally, note in PCC Section 3400 the reference to California-manufactured products. How does that square up with Federal legislation such as NAFTA? Is it ok to ban Canadian-manufactured wheelchair lifts? Must a California manufacturer for steel decking be specified and the manufacturer of equivalent decking in Arizona be banned? This is what makes spek riting so much fun !(???) Jim Sliff New member Username: jim_sliff Post Number: 1 Registered: 08-2010 Posted on Friday, November 05, 2010 - 01:15 pm:    What Nathan posted is the law in California (where I have been dealing with this issue for 30+ years); while I don't have the data close at hand, in practice there are exceptions. For example, the second portion (where ALL known "equals" must be listed) never happens, and while I've seen up to 10 products listed normally only three or four will be listed in a "parallel" specification. However, there are two specific exceptions to the law posted above (again, I wish I had them easily available so please don't roast me over the lack of a link): 1) where a unique product has been found to provide particular qualities that do not otherwise exist, and data is available to back it up, a sole-source or "no known equal" specification may be used (as long as there is still a clause allowing submission of other products for consideration - which solves the problem of the "unknown equal"), and 2) where justification can be made that a sole-source product must be used to properly integrate with existing systems OR for consistent appearance OR (and tougher to justify) for consistency in maintenance operations. Most of the turf wars are over the phrase "approved equal" when used to eliminate apparently equal products. That one (as most are aware) is not acceptable. I've found similar exceptions regarding sole-source procurement in Arizona on public jobs. A particular agency specified one product (more than once) that is somewhat, but "borderline" unique; the specifying agency refused to accept consideration of similar products, stating that research costs would not be in the best interests of the agency. They also required certified test reports proving equivalence, which could not be provided by the manufacturer within the "request for substitution" time frame required by law (which I believe is 30 days post-bid) as some of the tests take months to complete. A double-whammy. Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 327 Registered: 10-2007 Posted on Friday, November 05, 2010 - 02:42 pm:    Given a situation where there are two or more acceptable products but they differ enough that you would have to redo engineering calculations and/or have to modify the drawings to reflect detail differences. The cost of the additional design time is clearly in excess of the potential savings. The changes to the specifications are not an issue. How do you resolve this situation and comply with the law? I suggest that on most projects the law is ignored. Paul Gerber Senior Member Username: paulgerber Post Number: 37 Registered: 04-2010 Posted on Friday, November 05, 2010 - 05:13 pm:    The term "or equal" scares the bejeezuz out of me. It was something that the instructor of the CSC spec writing courses I took )and maybe even my college spec instructor) pounded into our heads as a HUGE potential liability. I will ask the same question he did... Who can determine that a Product is TRULY equal? If one manufacturer has a unique little widget on his dohickey that nobody else does and you specify "or equal", then you entertain a competitor's Product that offers the same characteristics/performance but doesn't have the widget and you accept it; what do you think a court of law would say if the original manufacturer specified decides to sue you because of the decision made to accept the "equal" Product? The words "or equal" are nowhere to be found in any of the Project Manuals I have done. If I can't find or don't have time to find a second or third Product (because the Project Architect dumps something on me at the eleventh hour) what you will find in my spec is "Consultant approved alternate". Providing performance is acceptable, meets intent of the original specified Product and it fits within the project physical constraints etc then it is an alternate; whether it is truly equal (the same in every aspect) is irrelevant. Ride it like you stole it!!! John Regener, AIA, CCS, CCCA, CSI, SCIP Senior Member Username: john_regener Post Number: 479 Registered: 04-2002 Posted on Friday, November 05, 2010 - 05:18 pm:    Mark: The issues you raise are ones that should be addressed in the Conditions of the Contract and in the Division 01 Section addressing product requirements and substitutions. These are where the shortcomings of PCC Section 3400 can be addressed at least for the contract for a specific project. The specifications should address whether substitutions must net lower cost, especially if there are costs to be paid for additional design and plancheck services. Or, to argue a position I don't support, should the design have been "dumbed down" to require more common materials and assemblies that allow for the most potential suppliers but not necessarily the lowest initial or life cycle cost? Note in the California Public Contract Code the stated intention to foster innovation and lowest cost. And I don't think these concerns are all that unique to California. Jim Sliff Junior Member Username: jim_sliff Post Number: 2 Registered: 08-2010 Posted on Friday, November 05, 2010 - 08:01 pm:    Paul, wouldn't "Consultant approved alternate" place the responsibility for product acceptability squarely in your lap? The definitions given for "alternate" and "equal" seem to imply that the unnamed judge of performance, intent, etc - essentially the intent of "or equal" (which never in my experience has been stated or even implied as "the same in every respect") - is the "Consultant". So to me "Consultant approved alternate" reads the same as "approved equal" and is just as restrictive. Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 328 Registered: 10-2007 Posted on Friday, November 05, 2010 - 08:07 pm:    While the conditions of the contract can clarify the rules followed on the project they cannnot ammend the PCC. As I understand it most, if not all, structural engineers in California are in violation of the requirement to specify multiple products. Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 451 Registered: 01-2003 Posted on Friday, November 05, 2010 - 09:27 pm:    Wouldn't it be great if some of the specifiers who work for government agencies got together, and tried bring order to the insanity of government specification practices? Oh, that's right; they did that about sixty years ago...