October 2020 Newsletter
**** The 4specs Perspective
by Jeffrey Potter - Specifier - HMC Architects - California
Do you ever feel your hands are tied with accepting substitution requests because of the phrase the "or equal"? Just because a product is tested to the same performance standards and acceptance criteria, doesn’t necessarily make it an equal does it? Or how about manufacturer’s that manipulate their testing data and claim their product performs the same or better as the specified product, but we know it doesn’t, what do we do then? These days, simply saying "no" on a substitution request doesn’t cut. The Contractors and manufacturers want an explanation. Even if you give them one, they will likely send you letter after letter claiming they should be accepted. So….
Are two products really ever equal? Let me ask you this, is an In-N-Out Burger equal to a Five Guys Burger? They are both burgers, have buns, lettuce, etc. If they were tested to performance standards such as cook time, weight, calorie count, etc., I bet they would turn out to be "equals" in the eyes of some people. Because would you reject a minute less cook time if the burger comes out just as good if not better? I bet some of your brains are turning right now. How can an In-N-Out urger be equal to a Five Guys Burger? Exactly my point. They are both considered burgers, but one is thinner, one is grilled vs. charred, one has a secret sauce, and the list goes on. So then, when we say “or equal” in the specs, what does that really mean.
Let’s back up a minute, what does equal mean? I define equal as something having the same certain value as something else, X=1, 2+2=4, 300 psi = 300 psi, 12 inches = 1 foot. I think you get my point. So…
Example 1: Take rubber flooring products for example and we specify only one characteristic and nothing else, a minimum 300 psi static load limit. During the bidding phase, we get a substituted product that has a static load limit of 450 psi. The project Specification requires a minimum 300 psi because all the flooring products we specify and know are great products are at least 300 psi. We want to deny the substitution because we know it’s a crappy product, but we can’t because it exceeds the minimum psi we specified. We ultimately have to accept it based off the criteria in the specification.
Where am I going with this, well here I go.
Those two flooring products are “equivalent”, not “equal”. Equivalent to me means something that is comparable, not necessarily equal, to one another. This orange is equivalent to this orange, Kobe is equivalent to MJ (although some might disagree on that one), or Nike is equivalent to Under Armor.
The flooring products in the example above are all equivalent. Are both acceptable, well that depends on the project requirements and Architect’s interpretation. What if both flooring products meet the same testing standards, but differ in one place, say static load limit by 50 psi. Are those flooring products equal? No, they are equivalent. If you know the substituted product will perform just as well, that 50 psi difference won’t matter to you. If that flooring product is crap and you say that 50 psi is the difference maker and deny, chances are you will get letter after letter, email after email, giving you reasons to accept. Plus the Contractor says it will save the Owner a bunch money and the Owner agrees, but you know as the Architect and past experience, the product is crap. Let’s face it, sometimes the Architect’s opinion doesn’t matter and the only other reason Owners come to the Architect besides design is because they have to for that stamp. The industry favors the Contractor and their opinion, not the Architect. When you look at flooring products, most test to all the same ASTMs and yet you can argue that each one is proprietary and truly not an “equal”. We all have those products that we know, even though they test to the same values as the Basis-of-Design, are just cheaper products. We eliminate those cheaper products from the specifications and attempt to deny the substitution requests when they come in. Yet it’s extremely difficult because they test and “perform” to the same standards. But in reality are just a cheaper product.
Example 2: I had a substitution request come in the other day on elevators. The substituted company submitted a side by side comparison and all the correct documents. However, I know this elevator was a “cheaper” product, but because it met all the specification requirements, I couldn’t recommend to deny. I had to consider the product an “equal” based on the requirements of the spec. The Owner is now getting a known cheaper product.
Example 3: I also had a substitution request on a shelving product. Again, I knew the substituted product met the spec from the submitted documents. The only difference was that the specification called for the manufacturer to have an ISO certified QA process, where the substituted product was a in-house process. The ISO qualification was clearly something specific to the manufacturer listed that probably shouldn’t be listed in the master, and my response back to the PM was "how picky do you want to be?” Could we deny, yes, but the substitution request contained information for the internal QA process that I deemed “equivalent” to the ISO process… So are we looking for equals or equivalents? If it was equivalent, I could deny because I deemed the product to be cheaper. Saying a product is cheaper is not necessarily quantifiable when it meets all the specified criteria.
Personally, I would love to get rid of the phrase "or equal" and revise it to "or equivalent as determined by the Architect", which in reality means "Whatever is acceptable to the Architect is final". Determining an equivalent product is really up the Architect and in some cases the Owner. Not the contractor and certainly not manufacturers.
Example 4: Rubber flooring again (because it’s easy to explain, and I promise I am not picking on you). The commercial rubber flooring we specify are tested to the same standards, yet some degrade faster in hospital settings due to foot traffic, cleaning chemicals, hand sanitizers, etc. So how are they all equal? They aren’t. But we list them as equals and we treat them as equals. If we specified products we know don’t degrade due to hand sanitizer, yet we get a substitution request for a product we know degraded quickly when exposed to hand sanitizer, how can we deny it if it meets the specification. If we put our reasons about the affect hand sanitizer has on the flooring, we most certainly would get letters from the manufacturer saying their product is not effected if maintained properly or some other "excuse". However, we all know that proper maintenance doesn’t always happen.
Let’s get rid of "or equal" and replace it with "or equivalent as determined by the Architect" because nothing is truly equal to something else outside of the mathematics realm. Just because some product had the same value as another, doesn’t mean they are equal, so let’s stop treating them that way. All products are proprietary anyways. They all have patents on something in their product that make it unique and perform a slightly different way. So why do we consider them equals? If we understand that things are equivalent, then we, as the Architect, should be able to simply reject a substitution by simply saying “Even though product meets performance standards, product does not meet Architect’s interpretation of quality”. Done. No bid protests, no complaining by the Contractor or manufacturer. End of story.
It’s up to the Architect to determine quality, not such performance standards. Those performance standards serve as a guideline to help, but ultimately, it should be based on the Architect’s interpretation of what is acceptable. Long story short, Architects shouldn’t be responsible for accepting substitution requests of products that meet specified performance standards, yet have never heard of the company or product or are known to be cheaper. We shouldn’t have to look for one tiny data point that is different to reject. Architects shouldn’t be spending more than 30 minutes on a substitution request if everything asked for is given. Anything longer means trouble.
Last Example: What if a company sold a product that they claimed performed a certain way and knowingly lied about its performance because they manipulated the tests? Then were sued and had to pay a huge sum to fix the problems. Then say, they developed another product that met the same end goal as the previous product. You know their past so do my want to place in your master and don’t want to even begin specifying, but then get a substitution request for that new product. Everything checks out and it meets the specified criteria. How do you reject it? You simply can’t deny based off of company history or that they are not a good company. And if you do find one small difference you know it’s gonna be a fight because the manufacturer will send letter after letter claiming that small difference doesn’t make a difference and to accept their product! Now what…
That’s why I am arguing for the decision to be based off the Architect’s interpretation of what is equivalent and not rely on "or equal", as "equivalent" gives the Architect more room to accept and deny product substitutions.
For those manufacturer reps, doesn’t this ring a bell? How many times do you get bid out because a known lesser product wins the bid. Although it meets the criteria specified, you know it’s a much cheaper product and won’t last or perform the way your product will. Understanding that products are equivalent, gives the Architect more power in determining acceptable products, and I firmly believe we get rid of "or equal" and replace with "or equivalent as determined by the Architect" in the public bid world. It will finally give power back to the Architect and limit bid protests for erroneous reasons.
No two products are ever equal. They are equivalent, but in reality, it is whatever, or should be, whatever is acceptable to the Architect.
It’s important to note that Division 00 or 01 should define what "or equal" is. My firm essentially defines it as meaning equivalent as acceptable by the Architect. But I think this adds confusion as now equal has two different meaning. Just because it is defined somewhere doesn’t necessarily mean that it will hold up in court. It can be argued that "or equal" is universally understood as 2+2=4, which would then make that written definition of meaning equivalent wrong. What I am trying to say is that the Architect shouldn’t have to give a reason why they denied a substitution request. Simply check deny and end of story. I think revising "or equal" to "or equivalent as determined by Architect" would do the trick.
Questions, comments and suggestions are always appreciated.
Publisher - 4specs