ConstructionPro Week, Volume: 5 - Issue: 7 - 02/19/2016

Can Owners Upgrade a Specified Brand?

By Bruce Jervis


A “brand name or equal” specification enables a project owner to call for a desired product while maintaining open competition by allowing the use of approved equals. The specification lists the “salient characteristics” of the named brand, the features that must be found in any proposed equal product.


What happens if the specification lists a characteristic that does not exist in the named brand, an enhancement not found in the off-the-shelf model? Can the owner insist the contractor furnish a product that includes that feature?


This question was recently answered in the negative. A contractor is entitled to bid the contract on the basis of the standard, off-the-shelf model of the named manufacturer. That product complies with the contract specification. The project owner is not entitled to require the contractor to seek customization of the standard model or to furnish an alternative “equal” product possessing the stated characteristic.


This ruling seems fair. Bidders must have certainty when pricing products to be furnished to a project. Listing enhanced characteristics not found in the named product seems underhanded. If, after contract award, an owner desires an additional feature, the owner can pay for it as changed work. What is your opinion?



As an estimator for a plumbing wholesaler I agree entirely. When an architect or engineer specifies an added non-available feature, we call it the Volkswagen with the 12 cylinder engine.
Posted by: BOB QUINLAN - Friday, February 19, 2016 9:54 AM

I agree. I just bid a project and awarded based on the specification that called for stock colors but then the AE asked if we had custom colors included as that is what the customer wants. I indicated it should have indicated in the spec. They almost threw out my bid because I indicated stock colors.
Posted by: Richard Berg - Friday, February 19, 2016 10:14 AM

A clear specification should include a complete description of the branded prodect. The product description may include standard options and these options may be available from other manufacturers as well. Such options should not be considered as customization. In reality, almost nothing is off the shelf anymore, unless you can buy it from Home Depot.

As a matter of practice, we do not like to use "or equal". If we are willing to accept other products, we would rather specify which "equal" products we will accept.

Posted by: Eden Milroy, Pilot Development Partners, Inc. - Friday, February 19, 2016 11:52 AM


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