Editor's Notes

A specification is “proprietary” if it calls out a particular brand or is written in a manner that specifies only one brand can satisfy its requirements. Proprietary specifications are not favored in public construction contracting because they restrict competition and arguably drive up the cost of construction. However, public project owners sometimes resent their inability to specify exactly what they want.


A recent federal contract contained a specification that could be met by only one commercial source. This was probably unintended on the part of the project owner. Nonetheless, when the owner dug in its heels and refused to consider a substitute “equal” product, the owner ran afoul of the federal Material and Workmanship clause.


The second case in this issue involves the sufficiency of a mechanic’s lien statement of the labor and materials furnished. The South Dakota Supreme Court said that because the contract was fixed-price for a comprehensive scope of work, detailed itemization was not required.


The third case addresses an unpaid subcontractor’s notice of nonpayment to the project owner. The subcontractor waited until its invoice to the prime contractor was past due. The owner had released the prime contract retainage to the contractor and the sub lost its security interest in those funds.




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