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Proprietary Specifying 201: Product Short-Listing

By Kevin O'Beirne, PE, FCSI, CCS, CCCA, CDT posted 09-19-2019 09:31 AM

  

Editor's Note: CSI is pleased to publish this third blog from Kevin O’Beirne, PE, FCSI, CCS, CCCA  csiresources.org. If you have an idea or opinion you would like to share with your colleagues in the construction industry, please contact CSI Content Strategist Peter Kray at pkray@csinet.org. He would love to help publish your thoughts.

 

In recent blog posts we’ve discussed basics concerning proprietary specifying (indicating products in construction specifications by name and perhaps model) and the pitfalls of using too much detailed, descriptive specifying in conjunction with proprietary specifying methods. This post addresses some practical aspects of proprietary specifying, especially when a public owner is seeking closed-proprietary or sole-sourced specifications.

 

In many cases, it is unrealistic to expect the design professional to evaluate or even to be aware of all potential manufacturers or suppliers of the materials and equipment to be incorporated into the project. However, the more important the material or equipment is, including its total monetary value in the overall project, the more diligence the design professional should devote to evaluating the alternative products in the current marketplace. When drafting its own scope of professional services, however, the design professional should be mindful of, and should avoid, promising to perform above the typical standard of care. Thus, phrasing such as, “Engineer will evaluate all available equipment alternatives,” should typically be avoided.

 

To reduce the potential for and to assist in defending against bid protests (especially in public work) and other types of disagreements arising from the specified products, the rationale for discarding a certain type of material or equipment and certain manufacturers should be logical, reasonable, and defensible, and should be documented in the project’s basis-of-design report.  The differences between various material and equipment items should be documented; tabulating the features of each item can be a very useful way of summarizing and contrasting alternative products. Material and equipment reference checks should be documented (a tabular format is useful) and included in the design professional’s basis-of-design report.

 

Manufacturers’ options available for a particular type of equipment should be evaluated, including their advantages, drawbacks, and associated costs; such information is vital in preparing the drawings and specifications during the construction documents phase (AIA)/final design phase (EJCDC). Also obtain from each manufacturer whose product is evaluated in detail information on special or extended warranties available and their associated costs.

 

Unnecessary or extreme reduction of competition should be avoided, especially for public work; this is both to ensure compliance with the letter and spirit of public procurement laws and regulations, and to allow the ultimate purchaser some latitude in negotiating the terms and conditions of the purchase order. When competition is limited, the purchase terms and conditions can, and usually do, become a significant concern, and can result in delays, increased costs, and/or deteriorated relationships.

 

Preconceptions and most prejudices should be avoided because manufacturers’ quality and products can and do change over time, as do product representatives. All participants in the process of product evaluation and short-listing should recognize that many owners will become emotionally invested in the selection process of larger equipment items and major materials and, for various reasons—some technical and logical and others emotional—can become strong advocates for or against certain manufacturers and product types. The design professional should endeavor to guide the process to a conclusion based on logical, defensible, documented reasons, rather than emotion. In public work, such reasons should be capable of withstanding close scrutiny by aggrieved prospective suppliers, the public, and the judiciary.

 

While product evaluation may be initiated during the schematic design phase (AIA) or feasibility study phase (EJCDC), the bulk of such evaluations and, ultimately, identification of the preferred product type and features is typically performed during the design development phase (AIA) / preliminary design phase (EJCDC), together with identifying the “short-list” of manufacturers and models that will be indicated in the specifications.

 

Attempts to influence selection of alternative types of materials and equipment following design development / preliminary design should typically be resisted and, when considered, done only with the project owner’s knowledge, consent, and acknowledgement of the probable effect that such re-evaluation is likely to have on the design professional’s budget and time of performance. Re-evaluations may well be grounds for a change in the design professional’s scope of services and fee. Whether alternative types of materials and equipment (“substitutes”) will be considered at any time after the construction documents phase / final design phase and, when so considered, the procedures for accepting and evaluating such proposals, is not addressed in this blog post.

 

The “short-list” of manufacturers indicated in the specifications (when proprietary specifying is used) is often determined during the design development phase / preliminary design phase.  While alternative manufacturers of the selected product type are sometimes further-evaluated during preparation of the final drawings and specifications, the owner, design professional, and product representatives should understand that the potential effects on project time, price (including the design professional’s compensation), and quality (including the quality of the construction and the quality of the construction documents) have greater potential to be adversely affected the later such evaluations are undertaken. Optimally, both the product type and the “short-list” of manufacturers and models to be indicated in the specifications should be “nailed down” by the end of design development / preliminary design.

 

In further blog posts, we’ll continue to explore more-advanced aspects of proprietary specifying and product selection.

 

Copyright 2019 by Kevin O’Beirne

The content of this blog post is by the author alone and should not be attributed to any other individual or entity.

 

Kevin O’Beirne, PE, FCSI, CCS, CCCA is a professional engineer licensed in NY and PA with over 30 years of experience designing and constructing water and wastewater infrastructure for public and private clients.  He is the National Manager of Engineering Specifications for HDR, a global engineering and architecture design firm.  He is a member of CSI’s MasterFormat Maintenance Task Team and is the certification chair of CSI’s Buffalo-Western New York Chapter.  He is an ACEC voting delegate in the Engineers Joint Contract Documents Committee (EJCDC) and lives and works in the Buffalo NY area.  Contact: kevin.obeirne@hdrinc.com.

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