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?
