“Proprietary” is not a bad word. It is one of the four methods for specifying recognized by CSI: Descriptive, Reference Standard, Proprietary and Performance.
Under Proprietary, there are two distinctions: Open Proprietary and Closed Proprietary. The difference is the use of the magic words, “or equal”, to distinquish “open” and “closed” specifications. For example, an acoustical panel ceiling spec which names three manufacturers (such as Armstrong, USG and Certainteed) but does not include the magic words “or equal” is a Closed Proprietary spec. ONLY products of the three named manufacturers may be used. An “or equal” or Open Proprietary spec may not name other manufacturers but the Contractor is not restricted to only using products of the named manufacturers.
Descriptive specifications, which describe in general or specific detail the attributes of a product, may be “restrictive” specifications if they are determined to be “de facto proprietary” or restrictive specifications. That is, only one manufacturer can comply with the specified attributes. That’s a very sticky position for a design professional to be in and it should be avoided. Funny (?) but most manufacturer-produced specs are de facto restrictive specs.
The issue is not the naming of manufacturers, it is the restriction by the specifications to one or a restricted number of manufacturers. In California Public Contract Code Section 3400, which addresses this matter (poorly), it is recognized that there are reasons in the public (or owner’s) interest) to restrict the specification to a single source and one or only a few products. Those are cases where the specified product shall match existing products. An example would be restricting lock cylinders to the keyway and masterkeying of one manufacturer used in the existing building or elsewhere on the campus.
Real life is proprietary. That’s why my preference is to write using the open proprietary method. Real products from the real world are identified, and may be more readily obtained than obscurely written descriptions. I also include elements from the Refernce Standard and Descriptive methods in Proprietary specs, to state the significant attributes that shall be met should a substitute product be proposed by the Contractor or for review during construction of submittals.
If you want to get very confused, try to write a spec for a finish material, such as ceramic tile, that is NOT proprietary. “Creamy yellow background with marble-like veining of burnt umber” or “Match industry standard Navaho White” wouldn’t do.
Sometimes the specs will end up restrictive. All potential manufacturers may not meet the specs issued for bidding but enough would. This is where the substitution provision, described in detail in a substantial Section 01 62 00 - Product Options, comes into play. If alternative products and methods of construction will be entertained (and how they can be entertaining!), then the substitution provision can be applied. The issue is then, adjustment to the Contract Time and Contract Sum if the alternative product is accepted. All the huffing and puffing and smoke and sparks from an excluded manufacturer might to defused by an adequate substitution provision. But then again, it might take work by such a manufacturer, who would much prefer the specs to be dumbed down to where its products would comply.
“Oh, it’s just as good as the specified product. There’s no difference in time or cost.” “If that’s true, then provide the specified product. You are offering no benefit to the owner” (ignore the matter of life cycle performance and cost; initial cost is apparently the only thing that counts).
