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Started By
Message
Construction Question
Posted on 4/23/19 at 8:31 am
Posted on 4/23/19 at 8:31 am
Having an issue with an architect on a specified product. The specified basis of design is a proprietary system, but there are listed alternate manufacturers. The alternate manufacturer's product has been submitted and rejected based on not having the "basis of design".
The problem is that the basis of design is proprietary. I have been told that specifying a proprietary product on a public bid project is illegal. Is this true?
The problem is that the basis of design is proprietary. I have been told that specifying a proprietary product on a public bid project is illegal. Is this true?
13
Posted on 4/23/19 at 8:32 am to Clint Eastwood
Probably 
Posted on 4/23/19 at 8:38 am to Clint Eastwood
For the most part yes, but there can be sole source justifications
You could have a legit claim depending on if the approved alternate met all the characteristics of the bod
You could have a legit claim depending on if the approved alternate met all the characteristics of the bod
Posted on 4/23/19 at 8:41 am to Clint Eastwood
You came to the OT for advice on how to make sure not to do something illegal?
Posted on 4/23/19 at 8:44 am to Clint Eastwood
It can be done with proper justification, like compatibility with existing systems or general aesthetic reasons like making sure a building addition matches the existing builing.
Also can be justified for maintenance reasons, to keep products/parts consistent throughout the jurisdiction.
Also can be justified for maintenance reasons, to keep products/parts consistent throughout the jurisdiction.
Posted on 4/23/19 at 8:45 am to LSUBoo
why did you submit the alternate?
Posted on 4/23/19 at 8:48 am to LSUBoo
Public work or private?
If it’s public, look at R.S. 38:2290-2296. Closed Specification Law
If it’s public, look at R.S. 38:2290-2296. Closed Specification Law
Posted on 4/23/19 at 8:48 am to Clint Eastwood
quote:
The specified basis of design is a proprietary system, but there are listed alternate manufacturers. The alternate manufacturer's product has been submitted and rejected based on not having the "basis of design".
This is odd though. If it was listed as an acceptable alternate in the specs, why submit it for approval? Or were you submitting a different product from the same manufacturer?
Posted on 4/23/19 at 8:58 am to Clint Eastwood
sounds like the alternate manufacturer is acceptable, but the product you submitted doesn't meet the specifications of the basis of design. If you want to use the alternate manufacturer you need to find a product from them that meets the spec.
Posted on 4/23/19 at 9:08 am to Clint Eastwood
Yeah if the design is proprietary, you cant venture out and use anything other than the listed manufactures products.
Posted on 4/23/19 at 9:49 am to Clint Eastwood
Did you submit the product substitution request. I’ve had A hole architect reject because the stupid substitution for wasn’t filled in and submitted.
If they have alternates in the spec book then they should accept one of the alternates listed.
If they have alternates in the spec book then they should accept one of the alternates listed.
Posted on 4/23/19 at 10:07 am to Clint Eastwood
It's a trap. Architect's don't want to sole-source so they will include alternate manufacturers that can make the same product, but just won't (usually barely miss) meet the specific criteria "required" for the project, or all three sources are in the same conglomerate and/or have no compete clauses.
I beat it once and the AE came so unglued it reeked of free stuff.
I beat it once and the AE came so unglued it reeked of free stuff.
Posted on 4/23/19 at 10:10 am to Clint Eastwood
What do your specs say? Anything that has a specific product should always have a rider of “or approved equal”
I’m sure there are caveats to those things but I’m my experience in specifying anything of a specific brand, that’s the language we use for CYA
I’m sure there are caveats to those things but I’m my experience in specifying anything of a specific brand, that’s the language we use for CYA
Posted on 4/23/19 at 10:20 am to Geauxld Finger
quote:
I’m sure there are caveats to those things
RS 38:2290
PART V. REGULATIONS OF CLOSED SPECIFICATIONS AND
EXCLUSIVE DISTRIBUTION OF MATERIALS
§2290. Closed specification prohibited; exception
A. No architect or engineer, either directly or indirectly, shall submit a closed specification of a product to be used in the construction of a public building or project, unless all products other than the one specified would detract from the utility of the building or except in those cases where a particular material is required to preserve the historical integrity of the building or the uniform appearance of an existing structure.
B. A closed specification shall not be submitted or authorized when any person or group of persons possess the right to exclusive distribution of the specified product, unless the product is required to expand or extend an existing system presently operating at the facility or site. However, no such closed specifications shall be allowed until rules have been promulgated by the division of administration after oversight by the Senate and House Committees on Transportation, Highways and Public Works and other appropriate legislative committees.
Added by Acts 1965, No. 40, §1. Amended by Acts 1982, No. 596, §1, eff. July 22, 1982;
Acts 1997, No. 678, §1.
There are definitely accepted caveats that allow for a closed spec if it's really necessary.
This post was edited on 4/23/19 at 10:21 am
Posted on 4/23/19 at 10:31 am to LSUBoo
What recourse is there if an architect writes a closed spec, bids are taken and the project let?
Posted on 4/23/19 at 11:07 am to Clint Eastwood
I have seen numerous projects hit with this. Louisiana state bid laws require that the bidding process is open. So multiple eligible vendors
But they can get you with design criteria. And having a substitution/equal approved prior to bid. Once bid, only prior approved though an official addenda is eligible to be submitted.
So if you are post bid, then only the basis of design would be permitted.
But they can get you with design criteria. And having a substitution/equal approved prior to bid. Once bid, only prior approved though an official addenda is eligible to be submitted.
So if you are post bid, then only the basis of design would be permitted.
Posted on 4/23/19 at 11:07 am to doubleb
quote:
What recourse is there if an architect writes a closed spec, bids are taken and the project let?
Theoretically the contract could be declared null and void, and the offending party could be fined $10K. I have my doubts about that happening though.
quote:
RS 38:2293
§2293. Effect of violation; proceedings to annul ontracts violating provisions of this Part
A. Any contract entered into in violation of any rovision of this Part shall be null and void.
B. The district attorney in whose district a violation of this Part occurs, the attorney general, or any interested party has a right of action to bring suit for appropriate injunctive relief in the district court to nullify a contract entered into in violation of this Part.
C. If a judgment of nullity is rendered in an action brought by a district attorney or by the attorney general pursuant to Subsection B hereof, the district court may award a civil penalty not in excess of ten thousand dollars against each offending party.
Added by Acts 1965, No. 40, §1. Amended by Acts 1980, No. 803, §1.
Posted on 4/23/19 at 11:13 am to LSUBoo
There you go. Closed specs are definitely acceptable if part of design function or integrity.
Posted on 4/23/19 at 11:29 am to bayou choupique
The subcontractor bid the project based on the alternate manufacturer, which is listed in the specifications. The alternate has a significantly lower cost. Its all about the money.
Posted on 4/23/19 at 11:31 am to LSUBoo
It is odd. Why would the professional of record include alternates and reject the alternate? It is a subjective question on whether or not it is equivalent function/standards.
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