3.5.16 Proprietary Specifications

General. A proprietary specification is one that limits competition. On private contracts, owners have the right to specify exactly what they want if they’re willing to pay for it. Although there are still formal and informal procedures to consider “equals” and “substitutions” (see Section 3.8), there is no obligation on the part of the owner to provide for fair competition among competing products.
On public contracts, however, the owner does have such a responsibility. Specifications are supposed to be written with the clear intention to encourage competition, and allow as many vendors as reasonably possible access to the project’s “market.” To this end, each product description should name at least three “acceptable” manufacturers and/or add the words “or equal” to the list of named sources. In the case where this language treatment has not been complied with, public policy, state statute, or federal regulations may provide the needed basis to allow competition.

Application. Although the specification may appear on the surface to comply with the requirements by naming alternative sources and by using the words “or equal,” the difficulty may next lie in the fact that except in the most simple product descriptions (like a steel stud) it is rare to find two products that are made precisely the same, or have the same list of technical specifications.
The problem is compounded with the complexity of those product descriptions. A Douglas fir stud is a Douglas fir stud, but carpets will have two dozen or so technical criteria, with no two carpets having the same list. The problem may be even worse in the case, for example, of mechanical equipment.
Read Section 3.8 on “equals.” If your proposed product is being rejected because it does not precisely match up to a long list of technical items, the specification may be considered to be unnecessarily restrictive so as to illegally limit competition, or the problem may simply be the designer’s placement of an inappropriately large amount of weight on some technical criteria that do not go to the essence of the product needed. Consider again the definition of equal: “The recognized equivalent in substance, form, and function. … ”