“Or Equal”: Fairness or Failure?

From JPCL, July Special 2017 - Special Issue

By Charlie Lange, JPCL

This article explores the concept of “or equivalent” or “or equal” clauses written into many product sections of specifications, governing use of alternative coating material options in addition to the specific products and brands specified. Various coating professionals, from contractors to specifiers to coating suppliers share their thoughts on this practice and the impact and implications of its use....

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Tagged categories: Coating Materials; Coating selection; Coatings manufacturers; Quality Control; Specification; Specification writing

Comment from Gary Siler, (1/2/2018, 7:46 AM)

I found that the best way to avoid confusion of product equivalence, as well as who makes the equivalence determination, was solved by always using the phrase "or engineering approved equal". This phraseology removed the ambiguous nature of product substitution from the process and placed the responsibility into the hands of the responsible engineering entity who specified the original item(s).

Comment from David Kenyon, (1/2/2018, 8:56 AM)

Gary: I can agree with you whole heartedly. My language is similar "or Architect/Engineer approved substitute". When I specific a coating system I research the the products - make the appropriate phone calls and attempt to the best of my abilities to provide coating systems from three different manufacturer that are in essencese similar or equivalent, not always an easy task and sometimes impossible. Depends on the client or agency. We deal in Transportation projects and most of our clients are government agencies which require the "or Equal" clause. I personally despise that clause - it opens up the specification to every Tom, Dick, and Harry and put the liability on the specifier to accept or reject some other manufacturer's products. Who pays for this extensive review? Most of the time the client - as part of the shop-drawing process. Other times we eat that cost.

Comment from Eugene Doerr, III, (1/2/2018, 9:06 AM)

It seems to me that this discussion is happening one step too late, probably because everyone in the discussion comes from a technical background. As an attorney, I have looked at this matter one step earlier in the process and advise clients not to get out of their lane and properly allocate the risk to those who have the most competency in each area. All seem to agree that the engineers and owners of the world are for the most part ill-suited to make the determination and that even an independent consultant may be swayed by relationships. I think we can agree that the entity most knowledgeable of any given product is the entity that created and manufacturer's it. So how do you get that entity to specify the best and most appropriate material for a given project? I advise owners and engineers to provide all of the pertinent data about the asset (heat ranges, particulate size and flow, chemical composition of stored materials, etc.) and then require bidding manufacturer's to put forth the material they certify will meet the intended use for the intended service life. I even have the manufacturer's sign a separate document that they have read everything supplied about the asset use and certify the product they are submitting meets the requirements. And if a contractor is adamant that a particular product is great for a certain situation, I will even have them sign a similar document. What this method does is it properly allocates the risk to the party with the most knowledge. A manufacturer will not put forth what they know to be the inferior product to be low bidder. They will be forced to put forth what they know to be the best product for the service or explicitly take on the liability of the failure to perform. This concept is actually an old one under the law. I have given talks at NACE conferences on the topic. The concept is known as warranty of fitness for a particular purpose. Suppliers always specifically exclude it because they are using old, boiler plate legal language. I just resurrect it because it is actually applicable to the matter at hand at the start of each project.

Comment from Michael Halliwell, (1/2/2018, 12:38 PM)

I suspect it may be different with coatings, but when it comes to things like geosynthetic liners, you can list the minimum requirements for attributes; such as material type, thickness, tensile strength, elongation at breakage and a suggested material (with the "or equivalent" at the end being more applicable to the attributes). I do agree, though, that it's more of a specifier's / engineer's role to accept it is "equivalent" as an owner may not have the technical knowledge to be able to say if it is or isn't the same / equivalent.

Comment from Peter Hesford, (1/2/2018, 1:32 PM)

Something we do is require proposed equivalent or equal products be submitted on during the bid period as a question. Products confirmed to be equal are then provided by name to all bidding entities as an alternative product in an Addendum. Proposed "equal" products presented after award are treated as substitution requests where any cost savings is shared with the Owner. And only if confirmed by the Engineer as an acceptable substitution product. This is not specific to coatings and indeed my venue is not primarily coatings but I work for a municipality where it is extremely difficult to specify sole source products. Our specifications typically include the reference "or approved equal".

Comment from Warren Brand, (1/3/2018, 1:07 PM)

Our entire industry needs to switch to performance-based specifications, which is what Michael alluded to. Or learn to identify optimal materials and practices. I had a meeting years ago with one of the largest transit authorities in the world. I gave the following analogy: Let's say you're sending your kids to school. And you want them to enjoy a nice brownie at the end of their meal. And you put it out to bid and say you want a chocolate brownie. You've just incentivized all suppliers to make the most inexpensive, least-costly brownie possible. Of course, you can specify the flower, ingredients, etc., but the fact remains, that they are incentivized to make it cheap. Eugene, when you say that, "A manufacturer will not put forth what they know to be the inferior product to be low bidder. They will be forced to put forth what they know to be the best product for the service or explicitly take on the liability of the failure to perform." I don't think the data in practice supports that statement. In an industry where one-year warranties are the norm - and material suppliers (and everyone else) immediately and inevitably blames the applicator, suppliers are absolutely incentivized to put forth an inferior product for two reasons. First, the inferior product will most likely be less costly, which puts money in their pocket. Second, the product will not last as long as a superior product, which means they sell more paint within a given time-frame. Our company identifies "optimal" materials and "optimal" application practices to avoid all of this confusion and inevitable finger-pointing. Also, whenever possible, we specify one, specific product with no substitution allowed. Owners either need to learn to identify optimal materials, or hire professional firms that can. Or, switch to performance-based specifications, i.e., "Provide a coating system for my bridge which will provide a maintenance-free service life in excess of 20 years...."

Comment from Tom Schwerdt, (1/4/2018, 9:04 AM)

Warren, the New Harbor Bridge in Corpus Christi, TX took that approach for the whole project - it's not a design/build contract. It is a design/build/maintain contract. Bidder is responsible for maintenance for 25 years, and there are stringent, detailed condition requirements both during the maintenance period and at handoff. Hopefully whoever is around 25 years after it is completed will read and enforce the original document...

Comment from Warren Brand, (1/5/2018, 1:44 PM)

Hi Tom, Really interesting. I've thought for years that, perhaps, contractors and/or suppliers should "lease" their coating systems.....

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