Across the Table: Proprietary Specifications
I chuckled and then I began to laugh. A friend had sent me a specification to review he thought we could pursue together. It was obvious the private university wanted the product of a single manufacturer. Not only did they list the manufacturer as the sole company approved to bid, but the product had to be built as only that manufacturer built it.
I called my friend and explained that unless he knew someone higher up the food chain at that university we should not waste our time pursuing this project. They knew what they wanted and they wanted it from the only manufacturer who could do it. It was clear they would brook no alternates.
Other times I have had lab planners who were excited by an innovative product, but who explained they would have to approve some ”or equal” products, that were not equal, to ensure they received at least three bids. These folks didn’t realize there are times when proprietary specifications are allowed and legal.
Legal precedent has been set in Whitten Corp. vs. Paddock, Inc.* The U.S. Supreme Court in early 1975 rejected the further appeal and further review of this case, thus supporting the decision of the Federal Circuit Court. On December 14, 1974, the Federal 1st Circuit Court affirmed a decision handed down by the United States District Court, Massachusetts (April 12, 1974) on this case.
Four major judgments regarding specifications developed from this decision:
Proprietary (one brand only) specifications do not violate antitrust law. The court stated that trained professionals – specifiers – make informed judgments on the systems that best serve their client’s needs (including public projects).
Suppliers can qualify as “or equal” only when the specifier chooses to waive specifications or permits the supplier to bid.
The specifier “will waive specifications in order to obtain a better product for his client . . .”
The burden is on the supplier/manufacturer who has not been specified to convince the specifier their product is equal or better for the purposes of a particular project.
NOTE: The specifier has the authority to determine “or equal,” not a contractor.
Where states have separate, stringent “three suppliers” requirements, there are typically specific exceptions for patented items, unique features benefiting the owner, specific performance needs (e.g. documented on-time performance for a fast-track project), etc.
The specifier should always document the reasons for a proprietary specification to avoid later disputes by affected competitors and contractors, and even to alleviate owner concerns. It would be helpful if the specified product is available through multiple bidding entities and not directly from the specified manufacturer, but this is not required.
Do your clients a favor. When you, or they, find a unique product that will add value to their project, make certain they get it through a proprietary specification.
*The complete legal decision is published in 424 Federal Report, 2a Series, pp. 25-36; 376 Federal Supplement, pp. 125-138; 508 Federal Reporter, 2d Series, pp. 547-562.
Dave can be reached at dwithee@alum.mit.edu or 920-737-8477.
All opinions expressed in Across The Table with Dave Withee are exclusive to the author and are not reflective of Lab Design News.