Or equal

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Author Message Gerard Sanchis Senior Member Username: gerard_sanchis Post Number: 80 Registered: 10-2009 Posted on Wednesday, July 25, 2012 - 03:28 pm:    After reading the thread on “Dispute” it brought to mind an ongoing discussion on a similar subject; that is how to define “or equal” where aesthetics considerations are not in play, nor are dimensions limitations. In our case I refer to two waterproof membranes on a publicly-funded project. The first is below grade and in the water table and the second is on a roof/park. The roof/park membrane has what can be considered “or equal” manufacturers/systems in terms of material composition, gage and warranty. The below grade system is proprietary and no equivalent system exists in the U.S. yet the owner (agency) insists that other dissimilar systems be considered as “equal” under pressure from bidders and other waterproofing manufacturers. The quantities of material involved are very large. The design team quandary is this: The waterproofing consultant insists that other manufacturers do not make an “equal” product based on the physical characteristics of the system specified. The manufacturers submitting substitutions insist that the performance of the alternate systems should be the only attribute that matters since aesthetics and dimensions don’t. The substitutions have the same warranty as the system specified and they perform the same function – that is they stop water from entering the interior spaces (or should). Are the substitute systems to be considered “equal” to the system specified? Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 581 Registered: 01-2003 Posted on Wednesday, July 25, 2012 - 05:11 pm:    The goal is to provide an assembly that won't leak, so does it matter how that is achieved? It's interesting that, in some parts of the country, bentonite is widely used, while it rarely is used in other parts. My perception is, there are bentonite, hot-applied fluid, cold-applied fluid, peel-and-stick, sheet, and composite assemblies that are equivalent in performance, though local conditions may favor one over another because of temperature, chemical resistance, or even time of year. We often get prior approval requests for a change in waterproofing type. Even if I'm sure the proposed alternative assembly will work, we don't have time or budget to review and change details, so the requests are rejected. Unfortunately, you're dealing with a public agency. As a rule, we don't specify unique products for public sector projects, no matter the justification. Agencies believe all things - and all contractors - are created equal, even when it is clear they are not. Steven Bruneel, AIA, CSI-CDT, LEED-AP, EDAC Senior Member Username: redseca2 Post Number: 353 Registered: 12-2006 Posted on Wednesday, July 25, 2012 - 06:31 pm:    You real problem may not be the relative qualities of two different waterproofing systems, but that you are in contract with a waterproofing consultant who does not feel it is their responsibility, or in their scope of work, to provide "equals". They may tell you that they will wash their hands of any responsibility unless the system they want is used. Or even if they don't there is the ever present risk that if the one they didn't like is used, and there is a problem, they would secretly love to tell this story of how their wise recommendations were ignored in deposition. We have had similar problems of single source solutions with waterproofing, building envelope, and even acoustical consultants. It is very important that they understand and agree at the outset that they are working on a competively bid project, with a broad definition of "equals", and that their recommendations must conform to these realities. Doug Frank FCSI, CCS Senior Member Username: doug_frank_ccs Post Number: 296 Registered: 06-2002 Posted on Thursday, July 26, 2012 - 07:59 am:    First Gerard, do Not accept any request for substitution where the basis is “Equal”. You’ve already stated that there really is no equal product available and you have the right to specify proprietary products when that’s the case (See Whitten Vs. Paddock; a US Supreme Court decision that defines specifier’s right to produce proprietary specs). However, given your Owner’s desire for competitive bids, allow your bidders to include voluntary alternate pricing for other systems that they deem equal. Then let your Owner make the final decision to accept one of the alternate manufacturers or not. Explain to your owner that, if he accepts an alternate over your recommendation against, it’s then his responsibility and not yours. Doug Frank FCSI, CCS, SCIP Affiliate FKP Architects, Inc. Houston, TX Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 582 Registered: 01-2003 Posted on Thursday, July 26, 2012 - 12:30 pm:    Many reps have referred to the Whitten case, but I often have wondered, when a public sector agency insists on having competitive bids, what good is it? If the agency refuses to acknowledge some things are better than others, and refuses to allow sole source specifications, it seems you must either specify a lesser product, or be ready to accept one. In my experience, the purchasing department is quite good at ferreting out attempts to get around their requirements. ken hercenberg Senior Member Username: khercenberg Post Number: 310 Registered: 12-2006 Posted on Thursday, July 26, 2012 - 02:43 pm:    Gerard, I feel your pain. I tend to agree with many waterproofing consultants in that certain systems have no equals. I also tend to avoid using bentonite under any circumstances and peel-and-stick sheet membranes for horizontal applications (though some of the hybrid 'fluid-applied primer with applied sheet' systems do seem to work okay). The bigger problem can be the transitions between systems and planes. The fact is that no one is infallible and everyone has an opinion on what works and what doesn't. Even the systems that seem to be without equal have competition from dissimilar systems that often have similar capabilities, they just get to the same place using a different technology. Today's limitations regarding cookers, fumes, smoke, etc. can make it harder to use some of the more time-honored and effective systems. We are tasked with investigating new technologies. While we tend to like being cutting edge, we don't usually want to be test specimen. My usual solution to sole-sourcing is to identify multiple solutions and identify them as Contractor's options. This still allows us to eliminate those products and systems we do not consider to be in the running and to establish whatever limitations we need to identify in order to feel comfortable with some of the options we list. I'd be happy to discuss some of the solutions I've found if you'd like. Please shoot me an email at khercenberg@payette.com to discuss this further offline. John Bunzick, CCS, CCCA, LEED AP Senior Member Username: bunzick Post Number: 1425 Registered: 03-2002 Posted on Thursday, July 26, 2012 - 03:55 pm:    I agree with everything stated. My other concern is that the last time I checked, there was not an objective standard on the performance of waterproofing. i.e., feet of static water pressure, or something similar. So who decides what's equal? and how is it determined? J. Peter Jordan Senior Member Username: jpjordan Post Number: 469 Registered: 05-2004 Posted on Thursday, July 26, 2012 - 04:17 pm:    This is a teachable moment for specification requirements on principals (rather than products). The specification is not a list of options that the Contractor (or a particular supplier) can choose from. The specification is all the stuff: description, performance, and reference standards. If it says that I want product ABC in a way to perform in an MNO manner, one cannot say that XYZ product that performns in an MNO manner is "equal" or "equivalent" because it is not product ABC. One can say that the performance of one product is equal to the other, but this does not mean that they are equal products because the specification goes beyond performance. Where we sometimes get bollexed up is that we will list product ABC when that product can't meet the performance requirements. While I agree to everything discussed above, at the end of the day, only those products meeting the descriptive parameters AND the performance parameter may be provided. Gerard Sanchis Senior Member Username: gerard_sanchis Post Number: 81 Registered: 10-2009 Posted on Tuesday, August 07, 2012 - 03:30 pm:    Thanks to all for your insights although I think the issue has not been resolved and will be challenged by the bidders. In answer to Sheldon’s first post, we’ve had a large failure on a large project with bentonite and haven’t specified the product since. Bentonite has to be completely contained otherwise it flows like water when activated, which is what happened. One of the difficulty is that the term “or equal” is not defined in AIA A201, nor is it in AGC200, or Division One. However the Business Dictionary defines it as a “Contract term meaning that a substitute must be equal in all relevant respects to the specified item.” Unfortunately the word “relevant” then needs to be defined and puts us back in square one. The difficulty in defining the term may be the reason why both AIA and AGC are silent on the subject. For our part, we’ve described both the physical and performance characteristics of the product and hope that it will suffice even though I’m not optimistic – the quantities of materials are very large. Read more: http://www.businessdictionary.com/definition/or-equal.html#ixzz22tChzrQ7” Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 585 Registered: 01-2003 Posted on Wednesday, August 08, 2012 - 11:45 pm:    Yes, bentonite must be contained to function. The companies I am familiar with offer details that deal with that issue. Perhaps the local rep didn't provide the information needed to properly design the installation. We have used bentonite, but usually for tunnels and other situations where we don't need to worry about at-grade containment.