“Or Equal”

equal symbol2“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.

Notes:

______________________________________________________________________

  1. “Or Approved Equal” is equally confounding, and can be substituted for “Or Equal” in this post.
  2. 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.
  3. 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.
  4. 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.
  5. Sometimes engineers sneak “Or Equal” into the project specifications, though.

17 thoughts on ““Or Equal”

  1. Good article!

    Seen attached? Little dated but still gives some insight

    Ralph W. Liebing, RA, CSI, CDT
    Senior Architect- Specifications

  2. Great discussion Liz,

    I understand you do not use “Or Equal” in your specifications. We avoid this practice too. However there are some public agencies that demand it’s use. And as specifiers, there is often little control of what other design team members will include in their specifications. So we must allow for the phrase and accommodate it’s inclusion, whether sanctioned or not.

    Referencing the substitution procedures as you suggest to accommodate the “Or Equal” phrase is the best way to maintain some semblance of control and to ensure the bidder or contractor substantiates the claim that the proposed product is in fact equivalent (acceptable for use – though never equal).

  3. I was taught, and continue to adhere here to, the doctrine that “or equal” should NEVER be found in a set of Contract documents. How does anyone determine if two things are truly equal (the same in every way)? I prefer to use the phrase “Consultant accepted alternative” (or using my Rosetta Stone Canadian to American translator “Architect accepted alternate”). This allows the merits of the alternative/alternate Product or system to be weighed against the specified Product or system and allows acceptance of the alternative/alternate if the design intent and specified properties are comparable without being completely the same.

  4. A critical element is to specify the critical attributes of products where ‘comparable products’ are allowed. There may be some attributes of the basis-of-design product that are not important for the project and needn’t therefore be equalled.

    This excellent blog should also motivate us to think whether and when we need to ‘name names’ for the product being specified, especially commodity products that can be specified by the reference method.

  5. The “or equal” discussion has been going ever since I became a member, and, I am certain, long before that. I can’t remember how many times I’ve seen this as a chapter meting topic.

    Although it’s possible to use definitions to say that equal doesn’t really mean equal, it’s much easier to not use that phrase. Manufacturers’ reps always have been quick to say there’s no such thing as equals, and I concur. I always use “other as approved” or similar phrases, depending on the location. That eliminates the “equal” problem, and, at the same time, makes it clear that the architect is making the call.

    As noted in comments above, some agencies are still stuck on using “or equal”, just as they continue to refer to “plans and specifications” even though I’m sure they are not excluding elevations, sections, and Division 00 requirements. Agencies have a lot of inertia, and, even though it’s darn near impossible to fire a civil servant, they typically are afraid to change anything, even if you can show the benefit in doing so.

    When dealing with an agency and a few large clients, we often have no choice but to do what they say. However, when dealing with other clients, I believe an experienced specifier is better able to address the “equal” issue than the owner.

  6. I sent Liz the some of the background of what allows proprietary specs to be written. It is what a lot of reps use to show that you don’t have to say “or equal” or at least you can truly enforce “or equal”. It is the legal basis of the proprietary spec and I believe it is current law. 508 F.2d 547
    United States Court of Appeals, First Circuit.GEORGE R. WHITTEN, JR., INC., d/b/a Whitten Corporation, Plaintiff-Appellant, v. PADDOCK POOL BUILDERS, INC., et al., Defendants-Appellees. No. 74-1169. | Argued Sept. 6, 1974. | Decided Dec. 17, 1974.

    I am in California and do about 90% public school work. There are rules here that all specs even if they don’t say ‘or equal’ they all should be read to include ‘or equal’. However, there is no reason you can’t have a performance based spec. That ensures quality products and gives the spec writer some ammunition to reject substitutions. For me, I get firms submitting on school projects from as far away as Georgia and Texas. They usually come in with a Chinese product ‘or equal’ and it does take some work to figure out how it isn’t or ‘or equal’ but good firms will usually hold a spec. The largest issue comes from firms that write their specs at the local office and then the submittals are all handled by another office far away like in San Diego. Owner in California can have ‘standards’ and that eliminates the need for this game. But it is fuzzy to what extent the standard has to be set before bid time.

    What I find most interesting is there is no real standard. As a rep every company has “CSI formatted or equal substitution forms”. It has been my experience that specifiers just rely on this statement. It reads:

    ———————————————————————
    The undersigned states that the following paragraphs, unless modified on attachments, are correct:

    1. The proposed substitution does not affect dimensions shown on Drawings.
    2. The undersigned will not require any change to the building design, engineering design, or construction details
    caused by the requested substitution.
    3. The proposed substitution will have no adverse affect on other trades, the construction schedule,
    or specified warranty requirements.
    4. Maintenance and service will be locally available for the proposed substitution.

    The undersigned further states that the function, appearance and quality of the Proposed Substitution are equivalent or superior to the Specified Item.
    ———————————————————————

    I find such practices to be lacking. The CSI form usually comes from a competitor and therefore they are not going to give the specifier the whole story. A spec should require the form to come either from a bidding company on the project or from someone licenced in the state it is being submitted. Further specs should require this to come well before bid. I can’t say how many times I see specs published 9 days before bid with the cut off or submittal requests at 7 days.That isn’t enough for proper review. Certainly post bid “or equal” substitutions are a bad thing but most firms accept them. The issue with post bids or equal requests is they usually put the GC in a bad situation. GC base their number on the ‘low’ number. Then they submit the or equal and if rejected they go back to the sub and ask for the specified product. The issue with this is it puts subs and reps at odds. If a rep learns that the sub is ‘or equaling’ you can expect the rep to increase that subs costs. That sub will then have more incentive to push back to GC and AED team. This can be made better by just insisting on “or equals” to be pre-bid and have substitutions (due to a design issue or product being discontinued) after bid.

  7. Evan,

    Thanks so much for your comments here, and for the link and attachments you sent me.

    The summary is interesting, because it mentions the specifier a lot, but it’s the architect of record who stamps and signs the specs, and who is party to the contract with the owner, and who is ultimately responsible for the contents of the contract documents. The specifier is just a supporting actor – the architect has the lead role. (The longer document doesn’t appear to mention “specifier” but mentions ‘architect” and “engineer” a lot.) It seems to be an interpretation as well as a summary.

    As a specifier, my role is limited during bidding and construction. I don’t even see most submittals. (I do ask my architect-clients to send me substitution requests and all submittals that they are uncertain about.) Most specifications consultants, and a lot of in-house specifiers, are in the same boat. Good architects know when to ask the person who prepared the specifications for help with interpreting those documents.

    I completely agree with you that substitution requests must come from a bidding general contractor, and my specs indicate that requirement.

    Here’s that link to the info in the “CSI Product Representation Practice Guide” on “or equal”: http://books.google.com/books?id=KuAaCnxml0IC&lpg=PA185&ots=helQZQnVAc&dq=or%20equal%20csi&pg=PA185#v=onepage&q=or%20equal%20csi&f=false

    Here’s the summary of Whitten v Paddock: http://www.lizosullivanarch.com/uploads/Whitten_v_Paddock_Summary.pdf
    and here’s the longer document:
    http://www.lizosullivanarch.com/uploads/George_R_Whitten_Jr_Inc_v_Paddock_Pool_Builders_Inc.pdf

  8. I read this in an addenda today. I thought it was wonderfully precise language.

    This statement below will take precedence over any conflicting language in the bid specifications regarding substitution of materials/equipment. For trade bids, this means substitutions will probably need to be provided to the GC at the time Trade bids close.
    D. Material/Equipment substitution Requests:
    (2) Substitution requests will not be allowed after an agreement has been reached, except in cases of absolute necessity and determined to be in the best interest of the Owner, by the Owner.

  9. I believe there is sometimes an aversion to the words “or equal” but I believe the real point to Liz’s blog is that the nomenclature is not the issue. The problems are created when you fail to effectively define just what “or equal” means. If you define the term to make it clear that this is an “Architect accepted alternate” as Paul said or “other as approved” as Sheldon said you can achieve the same thing. The definition can make it clear that the Architect is the one who makes the call and the definition of the term (regardless of what term you utilize) can make it clear just what the process is for getting that acceptance and/or approval.

    We try to avoid “or equal” in our documents as well but eliminating the actual words is just the beginning of the process for defining the substitution and/or product acceptance process.

  10. I just read this great section in a spec. I had to share. Don’t know if this is legal to copy/paste.

    I love it because it allows equals to be listed but puts a strong impetus & requirement on the other manufacturer to prove they are equal not on the spec writer listing a named product next to others. It fixes the requirement many have to list multiple manufacturers, list the manufacturers but make them prove equality to specified product.

    It is about all I can ask for from a spec writer, and if they stick to their guns, I appreciate it.

    Boy I hope they stick to their guns.

    01 25 00 – Production Options:

    1.2.2. Products Specified by Naming a Manufacturers Product: Provide Products of the lead manufacturer named in compliance with specifications.

    1.2.2.1. Products of alternate manufacturers not named are considered substitutions, and may be considered by Architect, provided products provide quality and performance equal to that specified.

    1.2.2.2. Where another manufacturer is listed as an approved alternate manufacturer to the specified lead manufacturer, products supplied by listed alternate manufacturer shall comply with specified characteristics of the lead manufacturer, and demonstrate compliance by providing substitution documentation as required by this Section.

    1.2.2.3. Where the substituted manufacturers standard product is not equal to that specified, the substituted manufacturer shall provide custom or nonstandard products, system components,fabrication and configuration as necessary to comply with specified criteria, whether or not such criteria are the substituted manufacturers standard or stock item.

    1.2.2.4. Consideration of whether a substituted product is equal to that specified will include all characteristics of the specified product, based on published data available from the specified manufacturer, whether listed in the specification or not.

    1.2.2.5. Consideration of whether a substituted product is equal to that specified is solely the decision of the Architect.

    1.2.2.6. Provide substitution documentation as specified in this Section.

    1.2.3. Where product is specified followed by term “No Substitution Permitted”, or similar phrase, do not submit alternate products for review. Any substitution request received will be returned rejected.

  11. My only comment on Evan’s latest addition to this discussion revolves around the following paragraph; specifically what follows the final comma:

    1.2.2.4. Consideration of whether a substituted product is equal to that specified will include all characteristics of the specified product, based on published data available from the specified manufacturer, whether listed in the specification or not.

    By including “whether listed in the specification or not” totally pulls the fairness out out of the rest of the criteria listed.

    If a characteristic is critical enough to be considered in the evaluation of the substitution, any Specifier worth his/her weight will have it included in the Product requirements specified. My off-the-cuff (and possibly Specifier-jaded) reaction to this statement is that it was proposed by a less-than-scrupulous manufacturer who has some “card up his sleeve” that he plans to fall back on for a characteristic that only his named Product can provide. Either that or an Architect who wants to keep his options open to eliminate manufacturers he/she doesn’t like or to eliminate the competition for Products he really wants without appearing to be sole sourcing.

    A diligent, experienced and conscientious Specifier, given a reasonable timeframe to produce a Project Manual for a project, wouldn’t need to include that portion of the statement.

    Where does this apparent “weasel clause” fit into the espoused 4-C’s of specifying principles?

  12. Pingback: Substitutions in the Construction Industry: A Panel Discussion, on January 13 | Comments From a Spec Writer

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