“Or Equal” is the most confounding phrase in construction documents.1
It means something different to everyone. Sometimes it’s defined in the documents. Sometimes it’s not defined in the documents, which means that the documents are relying on a generally-accepted understanding of the meaning. The problem is that “Or Equal” means different things when defined on different projects so there’s really no generally-accepted understanding of the meaning.
If “Or Equal” is defined, the definition, or description of procedures, should be somewhere in Division 01 of the specifications. In addition, it’s likely to be somewhere in Division 00 of the Project Manual, usually in the “Instructions to Bidders” form.2
In Division 01, the most likely place to find the definition of “Or Equal” is Section 01 60 00 “Product Requirements.” That’s the place to start, anyway.
The major confusion that I’ve seen among people3 dealing with “Or Equal” is the question of when “equals” can be accepted. The document that defines “Or Equal” should indicate when they can be submitted on, and how and when they can be accepted.
Recommendation for the contractor team:
If “Or Equal” is used in the construction documents, look it up in the documents for the project. Find out its definition for each project. Make no assumptions on a new project. Understand that the definition may differ from project to project. A tip: use the “find” function in the software you’re viewing the electronic documents with, and search for “or equal” in Divisions 00 and 01.4
Recommendation for architects and specifiers:
If you are going to use “Or Equal,” properly define it in the construction documents. (If the owner uses it in the procurement and contracting requirements, you need to use it.) Use the definition the owner uses. If you can’t find one in the owner’s documents, ask the owner about this. Understand that you may have to expand on the owner’s definition in order to make it clear to the contractor team. Understand that if you are working on a project with a general contractor on board prior to completion of the construction documents, such as a Construction-Manager-at-Risk/Construction-Manager-General-Contractor project, the CM may be issuing instructions to bidding subcontractors, and you should make sure that these do not conflict with the owner’s definition of “Or Equal.” This is part of the architect’s job.
Recommendation for owners:
Figure out if you want to allow “equals” or not. Figure out if you want them to be treated as substitutions or not. Figure out if you want to allow substitutions-for-contractor’s-convenience after the contract is signed or not. (Remember that substitutions-for-convenience after the contract is signed are usually not allowed on public projects, because it’s not fair to the bidders who did not win the contract.) Then communicate this to the architect, whether the architect asks for this info or not.
The way I work (this is kind of long-winded, so you can skip from here to the bottom if you want):
Except where specifically included in an owner’s requirements (either in procurement requirements, in contract documents, or in instructions to the design team) I do not use the term “Or Equal” in my project specifications.5
For unnamed products by manufacturers that I name in the specs, I use the term “Comparable Products” and specify that submittals for these products are due at the time that the submittal for a named product would come in, during construction.
For unnamed products by unnamed manufacturers, I use the term “Substitution” and, except on projects in which the owner wants substitution requests to be allowed during construction, I indicate that substitution requests must be submitted prior to the bid and will be accepted in the form of an addendum, which will be issued to all bidders.
The latest project I had on which the owner used “Or Equal” in the procurement requirements was a project at Colorado State University. CSU uses State documents. The State’s definition of “Or Equal” includes “Any material or equipment that will fully perform the duties specified will be considered ‘equal,’ provided the bid submits proof that such material or equipment is of equivalent substance and function and is approved, in writing. Requests for the approval of ‘or equal’ shall be made in writing at least five business days prior to bid opening. During the bidding period, all approvals shall be issued by the Architect/Engineer in the form of addenda at least two business days prior to the bid opening date.”
Since that’s exactly how I treat substitution requests, in Section 01 60 00 “Product Requirements” I indicated “Or Equal: For products specified by name and accompanied by the term ‘or equal,’ or ‘or equivalent,’ or ‘or approved equal,’ or ‘or approved,’ comply with requirements in Division 00 Document ‘Procurement Substitution Procedures’ for submitting a substitution request to obtain approval for use of an unnamed product. These substitution requests must be submitted at least 5 days prior to the bid date.”
The full procedures were indicated in Document 00 26 00 “Procurement Substitution Procedures” in the project manual. That document again defined “Or Equal,” indicated that they had to be submitted prior to the bid, and also defined Procurement Substitution Requests as “Requests for ‘Or Equals,’ and other changes in products, materials, equipment, and methods of construction from those indicated in the Procurement and Contracting Documents submitted prior to receipt of bids.”
So, what does “Or Equal” mean? Whatever the contract documents say it means.
It comes down to this: Owners should define “Or Equal.” Architects and specifiers should explain it. Contractors should look it up. We just need to communicate.
- “Or Approved Equal” is equally confounding, and can be substituted for “Or Equal” in this post.
- The Colorado Office of the State Architect calls the form “Information for Bidders” instead of “Instructions to Bidders.” Sometimes these instructions aren’t included in the Project Manual, but are instead issued separately, either by the owner or by a Construction-Manager-at-Risk/Construction-Manager-General-Contractor.
- By “people” I mean the whole freakin’ team. Owners are confused. Architects are confused. Engineers are confused. General Contractors are confused. Subcontractors are confused. Vendors are confused.
- On your computer keyboard, hitting the Control key at the same time as the F key will usually bring up the Find function. It works in Microsoft Word, PDF readers such as Adobe Acrobat Reader, and web browsers.
- Sometimes engineers sneak “Or Equal” into the project specifications, though.