I’m going to start my Monday morning by agreeing with Peter Jordan, on more than one post.
If you feel compelled to start your week by argreeing with me, you might want to consider staying in bed for a few more hours.
Yes, that makes a lot of sense, to share the fact that what is shown reflects a certain product/system.
Two questions, then:
- Do you actually define the term in your contract documents?
- If so, where?
And a 3rd:
3) Playing the devil’s advocate further (NOT using basis of design, having a single listed manufacturer with 2 more acceptable manufacturers, NO “or approved equal”, and having the drawings reflect the first manufacturer): how problematic could it be, that the Contractor might submit one of the alternate manufacturers, with the claim that the drawings do not reflect the “approved” designs, and successfully win more money?
i.e., should designs be done by the designer and not left to the Contractor? vs. basis of design alleviates the designer from having to draw the alternate details. (Yes, I’m playing both sides and trying to turn this over in my mind).
To a (Unregistered Guest):
Regarding your third point, I had that very situation on a fast-track multiple-prime project some years ago.
An alternative manufacturer’s rooftop mechanical unit was approved instead of the BOD. GC had framed openings based on the BOD and, of course, they had to be re-done to accommodate the approved unit.
In spite of all the Division 01 requirements for coordination, the Owner sided with the Lead Contractor in calling it a $50,000 error/omission claim against the A/E firm.
This is when I learned that the public owner is often sympathetic to the contractor, irrespective of what the contract says.
David, was your situation specifically a “basis of design (BOD)” specification? My 3rd point was in the NON-USE of BOD, where other acceptable and vetted manufacturer products are listed.
If it was a non-BOD specification, was the alternative manufacturer a “listed manufacturer” or simply an approved “or equal”? I could see the GC had reason for a claim if the alternative product used was of a listed manufacturer. And actually, I could see they also have a claim if they used a non-listed “or equal” product that would not work with the design, but was approved.
To push again in the direction of NOT using BOD, the drawings should reflect a design that is capable of accepting all listed manufacturer products, because the designer should vet that the listed manufacturer products will work with the design. Or, for an open “or equal” (again, NON-BOD) specification, the drawings should be schematic enough that any other product satisfying the salient characteristic requirements could be used.
There are some products for which there is no way to come up with a one size fits all design for that type of product. Windows, doors, hardware, luminaires - they are pretty universal and typically can be accommodated quite easily. Elevators, chillers, traffic control devices, a curtain wall that is blast rated and is protected by a wet sprinkler system - in my opinion, schematic designs for those types of products ensure that some fairly important elements of the design get overlooked.
Your examples of elevators, chillers, traffic control devices, and curtain walls are good ones.
But, lets stop for a second. I take back the word “schematic.” Couldn’t one just use the single, listed manufacturer in their drawings? And make sure alternate products will work?
Let’s take the pop up vehicle barrier earlier mentioned. Say one were to spec X. The designer has also confirmed Y and Z could work. The designer draws X, and lists Y and Z as other acceptable manufacturers (vs. opening it up with or approved equals"). The contractor then proposes Y.
Here’s where I could use some help. So, Y has different height, width, and depth dimensions than X, but it meets the K-12 rating and duty cycling.
If these are the important elements of the design, shouldnt the designer vet that Y and Z meet them before listing them?
If there other elements, shouldnt they be listed as salient characteristics as well?
Even if the spec is open beyond acceptable manufacturers to any or approved equal, shouldnt these elements be checked again before being approved (provided one uses “approved equal”)?
I could sure use some help from anyone that can provide me with more detailed explanations that argue a basis 
for using basis of design
Since you have asked a question that is answered by your original proposal, I’m going to conclude my participation in this discussion with the following:
20 minutes of research into vehicle barriers (look up Delta Scientific, B&B Armr, and Smith and Wesson - all K-12 rated, all completely different installation requirements), automatic transfer switches (Eaton and Cutler-Hammer), or chillers will answer the majority of your questions. For many products, there are not “one-size-fits-all” solutions. Not proposing a solution to the client, typically BOD with approved equals, is an excellent way to get fired.
Hello all, I have a quick question Im sure you can help with!
Basis of design only lists a single manufacturer (for a transformer harmonic suppression filter). I know I can most likely get another manufacturer approved through the substitution process, but my question - is it against any laws to hold the contractor to the basis of design when only 1 manufacturer is listed?
I am not an attorney, but it is my understanding that if the project is for a private client (Not public: local, state or federal) then an AE or an Owner can specify only one manufacturer if they wish.
I am assuming you are talking about public work, not private work. In private work, you can do whatever you want.
It would be difficult to hold the basis of design is it is a thinly cloaked proprietary specification that can only be met by one company. It is problematic whether it would be a good idea to attempt to do so. If the contractor proposes a truly comparable/equivalent product, then why would it not be acceptable?
On December 14, 1974, the Federal 1st Circuit Court affirmed a very important decision handed
down by the United States District Court, Massachusetts in the case of Whitten Corp. vs. Paddock,
Inc. (4/12/74). The U.S. Supreme Court rejected further appeal and further review, thus supporting
the final decision of the Federal Circuit Court.
The opinion contained four major judgements regarding specifications:
-
A proprietary specification (one “name” only) is not a violation of anti-trust law. The
court stated that trained professionals - specifiers - make informed judgements on the
products which best serve their clients’ needs.
Summary: If the specifier decides to limit his/her specification to one source
he/she has the authority to do so and to enforce it. -
The court ruled that other suppliers can qualify as “or equal” only when the specifier
chooses to waive specifications or permits the supplier to also bid.
Summary: Only the specifier can decide that another supplier is “equal” to
the brand specified. The specifier is charged with this responsibility. -
The court stated that the specifier only has the right to . . . “waive specifications in order
to obtain a better product for his client . . .”
Summary: Only the specifier (from start to finish - in the construction process)
can ultimately decide that a better product is available and change
the specification. -
The court concluded . . . "The burden is on the supplier (manufacturer) who has not been
specified to convince (the specifier) that his product is equal for the purposes of particular
project . . .
Summary: Informed specification writing and professional salesmanship rule!
Reps drag that out a every so often, but what does it mean in practice? Perhaps the decision applies only to private sector work. If the Great State of California requires three “equal” products, what if there is only one that will do what the architect wants?
Wow. I feel like the “S” in “CSI” should stand for “SUPER”
It should be noted that this would not necessarily apply in other jurisdictions (including various state courts). The Fifth Circuit here in Texas might have a diffrent take. The fact the “Supremes” declined to review the decision would carry some weight, but does not necessarily make it applicable to all jurisdictions.
Sheldon, California does not require three “equal” products. California Public Contract Code, Section 3400 (b) (2), states that specifications may not call “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.” If the specifier knows of an equal product, they shall name it; if they don’t, obviously they can list one, with “or equal”.
While there may sometimes be only one product that fits the need, more often there are a few that are just not identical so it eludes the decision-makers to put them side-by-side in a spec but it certainly can be done, with the proper awareness. I’m afraid that far more often though, there are several products that would work fine and people just haven’t researched what is available and what complies, let alone establishing the criteria for their project. (That can be performance, a range of aesthetics, or both. Still, it is not rocket science.)
People forget that properly written competitive specs ADD VALUE for the project Owners. They just want to get the design finished.
To “a (Unregistered Guest)”: If the specifications do not list the salient attributes the design professional had in mind it weakens the rationale for rejecting a product PARTICULARLY if they listed the manufacturer of some other submitted product, AND this manufacturer does not offer any other products that comply with the wording stated in the spec. In order to really answer, we would need to know if it was a scenario such as that. I’m just going out on a limb. It happens too easily when you have non-specifiers editing specs from a long list of manufacturers they don’t know. Again though, the specific documents of the project and the law of the land in that area matter way more than conjecture on a specifying forum. So don’t believe anything we say without doing your own research - we can just point you in several directions and hopefully one of them is right. More than likely you are dealing with one or more conflicts and the documents will say refer to the Architect for a decision. If that is how architects are mostly doing it these days (non-specifiers specifying, regardless of how good your spec software and library is, or SHOULD be except for garbage-in-garbage out and untrained people operating power tools), has that mess become the new “standard of care”? I don’t know, there’s that word “prudent”. So to continue how it would play out, unless the Owner or AHJ cries foul play somewhere then that decision is final. But if they do, it could go through a legal process and end up just like the case Wayne cited, or depending on the strictness of competitive bidding rules for the project type and the locality, maybe not.
To “username (Unregistered Guest)”: I’m a little unclear about your role in the process. You could be with a design firm or you could be a product rep wanting to get a mfr you represent through the substitution process? Also don’t know what stage in the process we are at - design or bidding hopefully, but maybe construction?
You need to know what the important (salient) attributes are and evaluate accordingly. Also, the law varies on this depending on where you are at, who the AHJ is, and what type of project it is. I’ve practiced in areas where it is sacred that you’d better always have 3+ primary source mfrs for each product type or a sole-source approval request explaining why product X is in the Agency/Owner’s best interest. Common with public school, university, and government projects.
Consider that the theory behind competitive specs and substitutions is that it can save the project Owner money (and sometimes that is taxpayers - usually that is where it becomes the law).
In some other areas I’ve practiced, competition is required and looked upon as a good thing but there is no sole source approval requirement and unfortunately no one is checking. My take on it in those cases is spec it right anyway, it will add value to the Owner, and it will sure improve your office master specifications. Means hunting down products when designers think they are done (you were lucky to get even the BoD product from them!) and then running those by them for review - it is a design decision.
Meant to also mention, Basis-of-Design CAN be used on public projects when it is done right. (I can’t speak for exact wording requirements of every jurisdiction everywhere, of course). Basically you just have to set criteria so all listed manufacturers can meet each stated minimum requirement (or maximum, as the case may be).
Here’s the rub, designers, yes it means you have to take time to know more about the products. But be encouraged my friends! That is part of design. You are creating a building, forming space, and providing for human needs by using products, materials, and systems. The more you know about those items that make up a building, and how they go together, the better a designer you are.
Another way to properly use BoD specs, quite easier for those highly aesthetic products, is list each product and its salient requirements, then the next allowable competing product and its requirements, and so on.
Oh, and PLEASE please DON’T throw the BoD terminology around when only listing one product. In effect you just have an open spec that anyone can try to bid but will end up just getting rejected. Not worth the time and money, not adding value to the Owner either. That is usually a case of mostly #3 and a smattering of #2, referring back to the original posting.
Many facility Owners do know the difference between a set of documents where this has been figured out, and one where it has not. In the next decade the architectural profession will be led by firms that offer excellent aesthetic design and excellent documents in spite of the very real challenges firms face because of the long recovery from the recession. It is time well spent and a very short payback to have designed during design development, and documented during construction documents, paving the way to efficient CA through bid and construction, and retaining more clients as a result of successful projects. Keep at it long enough and win more work by your solid reputation for delivering projects and having a fee structure that does not include re-re-redesigning all through CD, bid, and construction. In the short term, it means more late nights, maybe changing firms a couple times, maybe starting your own. Or…do like everyone else seems to and slap a BoD on it and go home.
To conclude, use Basis-of-Design when you did really design, inclusive of product research that is part of design. Otherwise, what is the basis you are calling it? If you just want to pick one storefront profile for your details and you’re sure nobody gives a rats behind then don’t use Basis-of-Design, use “Acceptable products include, but are not limited to…” and make sure your Division 00 & 01 documents include the principle of Complimentary Documents, substitution procedures, and product requirements - you are probably good, and communicating better to the bidders.
Sorry, Sheryl, I thought it was someone from your neck of the woods who was complaining about government agencies that require three equals, or something to that effect.
With regard to the original post - “when should you” do something. There is when it is required by law, and there is when your client paid you to do something, what is that something that you owe them? (I’m not a lawyer so I’m just speaking from good business sense.)
A lot of people are happy to go with “Product X or equal” and leave it at that. Some AHJ’s or clients may mandate the term “or equal.” OK, essentially the same as “acceptable products include but are not limited to” and then naming only one product. I might as well call them both the “or equal” or equal method. I like to add in who is doing the approving, so the subbidders don’t show up on the jobsite with the wrong stuff and try to say well somebody who works for the GC told me it would be OK, that is my approval, or my boss approved it. Ideally Division 01 protects against this also.
The “or equal” or equal method may fly when there is not a law requiring 3 to be named and when your client has not negotiated with you to include multiple competing manufacturers. Still, it adds to the cost of construction in hidden ways. Bidders are disadvantaged to compete if they don’t really know what the architect wants. Architects will likely have to manage wonky substitution requests and may inadvertently approve something not suitable.
It is better for the Owner if all possible products that fit their needs can be listed in the specifications to begin with. This adds to the design costs. If the design project is negotiated with that as part of the deal, great for everyone. Jurisdictions and Owners who enforce it have that as part of the deal for all of their work. (Except if someone produces phony specs that have latent internal conflicts just to name 3 products.)