I specify for a lot of public work and have been told to be sure there are at least 3 “equivalent” products in my specs. Well I have never been able to find any sort of law, requirement, or policy that insists that I specify 3 products.
Do you know of any document that requires 3 products?
California Contract Code did, at one time in the past I think/thought, had specifically required 3, but it now reads “or equal” only. But it doesn’t really matter since you will need to do whatever the client wants. Even if you write into your Div 01 section(s) that named products are implicitly followed by the word “or equal”, I have still had public entities require that I actually write the words “or equal” after each and every named product instance throughout the project manual…and I did because the client wanted it.
Have specified only one product in many cases on public projects with no push back.
In many cases the regulatory approval process would be more complex if we had to name multiple products with different design values. For example you cannot just replace one brand of expansion bolt for another without having to modify the design.
On a public school project when the contractor proposed a substitution for the single product named I obtained an extra service fee to modify the design. It turned out that the redesign fee was more than the savings due to the substitution. The point is that in some situations the cheapest thing for the Owner is to design for one product or our design fees would be higher.
Structural (along with other) engineering (and also elevator) design and detailing is a “special” instance, where, I believe, one named product serves as basis-of-design for a project, BUT specs prudently adds accompanying clause that any other (named or not) mfr’s product that require “re-engineering” is at bidder’s/contractor’s expense (i.e., reimburse design architect/engineer). Curtainwall is another that DSA, I believe, specifically cites as an example for such acceptable deferred approvals by A/E, since GC cannot “sign-off” on re-engr’d design.
Items like finishes and similar (non-engineering-related) products more easily “lend themselves” to “either/or” options that public bid requires. Again, it depends on what your specific client “demands”; in the end, you do what they want and additionally qualify any “re-engineering/-design” costs to try and protect your interests in the project.
Going with “common knowledge” can get you in trouble, or cause unneeded problems. I, too had heard the “three products rule” for many years before taking a job in the public sector, but once I was there, I found no requirement for it. In seven years at one agency, and two more at another, I never followed that “rule” and had no problems. The firm I work for now is working on a project for an agency that expressed a desire - not a requirement - to have three products, and they are quite willing to have fewer if we suggest.
Not all public agencies have the same requirements; you must ask each one what their policies are. You won’t always find what they tell you to do in statutes, either. Compounding the problem is the multitude of agencies that may affect a project; not all of them agree on how things should be done. In a given state, different agencies interpret the same statute in widely different ways, and if Federal funding is used, things can get messy. It isn’t just the number of products, either, but includes type of alternates (add or deduct or either one), order of selection of alternates, how to use basis of design products, use of prior approvals and post-award substitutions, sole sourcing, what the advertisement must include, and more.
It’s always good to look at the statutes, but the individual agency is calling the shots. If they require you do something that is not in the statutes, you should bring up the subject, but they’re in control.
Another interesting thing is state requirements for certification of documents. Some require one or more sets with wet signatures, some accept images of signatures, and some accept digital signatures. Some require signatures, whether wet or dry (?), on every drawing sheet, others only on the cover sheet. Some require a disclaimer on documents that are not final, others do not. And to make things really interesting, some states have one set of rules for architects and another for engineers. And despite what state statutes require, cities within a state often ask for something different from what the statutes require.
Check the state statutes. I write for a government agency and try to avoid having less than 3 manufacturers for competition sake. However, in Florida, if justified you may specify less than 3 manufacturers. Our state statute 255.04 (Florida Law) reads:
“…no school board (or similar)…may specify the use of materials or systems by sole source, unless (1) the government body, after consideration of all available alternative materials and systems, determines that specification of a sole material or system is justifiable based upon its cost or interchangeability.”
A jurisdiction I am familiar with requires “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.”
The Pennsylvania Department of General Services Project Procedure Manual states:
“SECTION 205 - DESIGN RESTRICTIONS
205.1 GENERAL. Specifications for DGS projects are “or equal” specifications, and products available from a single manufacturer, or a limited number of manufacturers, are not to be used in project designs. DGS requires at least three (3) manufacturers of an available product to be specified, but bidders may use equal products/manufacturers, as per the General Conditions of the Construction Contract.”
There are also “Buy American” requirements, especially for steel products. The PA Legislature in its infinite wisdom has enacted legislation that supports these requirements and empowers DGS to enforce them. By the way DGS just issued all new manuals and standard specifications as of January 2010 and they still use MF 95.
Forgot to mention. These requirements apply to all state funded construction projects schools included.
OSFC (school funding commission), The Ohio State University, and the State of Ohio all require either performance specifications that a minimum of three manufacturers can meet or listing a minimum of three manufacturers in the specifications.
Commonwealth of Virginia BCOM (Building Capital Outlay Manual) prefers non-proprietary specifications but, if products must be named, at least 3 products and manufacturers are required. Oh, and you must always list Virgnia-based companies first.
State projects in New Jersey require the naming of at least three manufacturers for product specifications. I believe this is spelled out in the State’s Administrative Code - Procedures for Architects and Engineers. Proprietary specifications require approval by the Treasury Department, Division of Property Management and Construction.
Personally I am unaware of any provincial regulations that require a minimum number of Products to be listed. I usually have a minimum of three Products because, in my opinion and that of a lot of other industry participants, it is in the Owner’s best interest to ensure competitive Bidding.
I am always amazed that people still use the word “equal”. Who determines if Products are truly equal? If a Product meets all the design and performance requirements, but doesn’t have one of the “bells & whistles” of another Product, should it be excluded from consideration if it is more economical? If I have to, and I dislike doing it but sometimes have to due to timing constraints, I will use “Consultant approved alternate”. Then the burden of proof is put back to the alternate manufacturer/supplier to prove to me that their Product meets all of the necessary project requirements. I think the use of the word “equal” opens one up to possible litigious situations where suddenly you have to prove or disprove that another Product truly is “equal” or why/why not one Product was/was not accepted.
Massachusetts law is clear and simple: Three products must be listed, and even if none are listed, three must be actually available. Proprietary specs can be used if it is in the public interest to do so, and the decision is a matter of written public record.
In the scenario Paul Gerber describes, if the bells and whistles are part of the design criteria, then the product is not equal. If they are unimportant to the project, then maybe it is equal. I try not to specify product requirements that I don’t really care about, though admittedly that is an imperfect process.