A Proprietary Specification is one that provides for the furnishing of a specific product made by one manufacturer, or provides a description of a product that can only be met by using a product made by a sole manufacturer. The legal effect of a Proprietary Specification differs depending on whether the Project is public or private.
On public work in Massachusetts, a Proprietary Specification violates the law with one limited exception. Massachusetts General Law Chapter 30, §39M, requires that on all public projects the bid specifications must provide for full competition for each item of material by listing either a minimum of three name brands of material, or an equal, or a description of a material which can be met by a minimum of three manufacturers, or an equal. [The sole exception is when an awarding authority, prior to bid, makes a reasonable investigation and decides in writing that a proprietary material serves some public interest.] Except on the rare occasion where that exception is invoked, a contractor/subcontractor on public work has the right to offer an equal material to what is specified, even where the equal is substantially less expensive than the named brand.
When you submit an equal the statutory test is:
…1) [is it] at least equal in quality, durability, appearance, strength and design, (2) [will it] perform at least equally the function imposed by the general design...and (3) [does it] conform substantially even with deviations to the detailed requirements for the item in the specifications...
If the owner and/or architect rejects the submission, you will be left with a claim for extra cost on which you will have to prove that the material submitted was in fact equal under the statutory test.
The proper time to protest a specification that does not list three materials, or a description of a material that can be met by three manufacturers, is prior to bid. Otherwise a general contractor or subcontractor may be forced to furnish the specified material and be left with a claim for additional cost.
On private work there is no legal restriction limiting an owner from using a Proprietary Specification. The only way a contractor or subcontractor on private work can furnish an equal product is to obtain approval from the owner and/or architect for the use of the equal product, or to clearly condition the general or sub-bid on the use of a named equal product. To avoid the risk of having the bid rejected as non-responsive, you can include as an option the use of an equal material at a stated price, showing the owner that a potential savings will result if the bid is accepted with the substituted material. If you submit a bid with no conditions or options, the private owner can insist on the use of the specified product and you will not be entitled to any additional compensation for using that product.
This
newsletter is intended to provide general information of interest to the
construction industry. It is not intended to provide specific legal advice or
to address fact specific issues. For that you should consult your legal
counsel. Corwin & Corwin LLP assumes no liability in connection with the
use of this newsletter. The Supreme Judicial Court may consider this material
advertising.
©1992-2000 Corwin & Corwin LLP. All rights reserved.