Watch for "Or Equal" Specs
By Robert J. Smith, PE, Esq.
A typical construction project spec book includes at least a few sections where materials are specified by brand name followed by the words "or equal." This practice is widely used and widely accepted. It offers advantages of brevity and product control, while providing the chance for competition.
However, these advantages can create conflict between the design professional who insists on using only the named product and the contractor who asserts that another product is considered equal.
There are numerous legal interpretations in this area, which are sometimes complicated by federal, state or local regulations applying to publicly funded projects. (A private owner may specify a product by brand name only permitting no substitute. This is the "base bid" spec, which allows tight control over product quality. But the lack of competition might lead to higher prices.) Disappointed suppliers may protest when the contractor doesn't follow regulations on public work.
Keep in mind some basic concepts when drafting or bidding brand name specifications:
Standard of Quality Must Be Maintained
Whether the contract says so or not, a brand name "or equal" spec establishes a standard of quality. Court cases on "or equal" specs have ruled that a functionally equivalent product is "equal." Thus, aesthetic or minor design differences don't justify rejection. Therefore, the specs, at a minimum, should set forth the salient requirements or the specific features that prompted selection of the product. This makes it easier for the bidder to evaluate alternatives and provides guidance for a court or arbitration panel if necessary.
"Written Around" Specs Are Considered Brand Name
Another series of cases holds that a spec not naming a brand but "written around" a brand name will be considered a brand name spec. Since improper rejection of a tendered equal can entitle the contractor to more compensation for providing the named product, the decision as to which product to use must be made fairly and in good faith.
Designate Who Makes the Decision and When
Contractors and design professionals will benefit from spec provisions stating specifically who will make the decision and when.
Contractors should be wary of "or equal" specs when they're bidding a job because any product other than the named one may not be acceptable. Check the front end or boilerplate of the contract for the criteria and procedures on substitutions.
Bidders should seek to have the design professionals identify the salient characteristics of a product. By all means, contractors should insist on the incorporation of these points in any quotes or purchase orders to their suppliers or subcontractors.
is a principal in the national construction law firm of Wickwire Gavin, P.C.
Madison, Wisconsin
Edited by Lisa Schuetz
This article is based upon work supported by the University of Wisconsin–Madison Department of Engineering Professional Development. It is for general information and distribution. It is not intended to provide specific solutions or advice for specific circumstances, which should be sought from appropriate professionals.