PURPOSE
The Master Specifications allow the Contractor to propose the use of substitute or equivalent products, equipment, or materials in lieu of those specified in the contract documents. A “substitution” submittal proposes the use of a product, equipment, or material that is not the equivalent of the one specified, but which can serve the same function. Substitutions typically require modifications to adjacent work or related work in order to accommodate the proposed item. An “or equal” submittal, on the other hand, proposes the use of a product, equipment, or material that is equal or better to the one specified. Normally, “or equal” alternates do not involve modifications to adjacent or related work. The Master Specifications require that all “or equal” proposals be submitted within 30 calendar days after Notice to Proceed. Submittals received after the 30-day period, will be considered as “NOT EQUAL” and will be processed as a “substitution” submittal.
The “or equal” phrase allows acceptance of the named article with any other brand name of equal product quality as a replacement for the originally named article. Unless certain conditions exist (e.g., research, development, or testing) or with approval to use only one source (sole source), naming a particular product only serves to establish a level of quality deemed acceptable. With approval of the Board of Public Works by adoption of a board report, some projects may sole source selected equipment to standardize the type of equipment used throughout a facility, such as air-conditioning equipment in fire stations.
“Equality” does not mean that a proposed alternate product has to be equal to the named product in every respect; but it does mean that it has to be synonymous in regard to performance, quality, and other significant and listed characteristics. In other words, proposed alternate products cannot be rejected merely because of minor differences in design, construction, or features that do not affect the suitability of the products for their intended use.
The determination of whether two products are equal or not, is made on the basis of equality between their “Salient Features.” Salient features may consist of very precise performance features (e.g., operating speed, horsepower, sensitivity, and the like), or they may refer to more general characteristics. The “or equal” product description must set forth the salient physical, functional, or other characteristics that are essential to the minimum needs of the design.
It should be noted that aesthetic features generally are not a legitimate reason for rejecting a functionally equivalent product, except in the case of architectural finish products. Where funds are provided by a granting agency, however, the agency’s requirements are to be used.
If the Contractor knowingly fails to inform the Construction Manager about deviations of a proposed alternate product, approval cannot be regarded as acceptance of a change in the specification. This is why approval of alternate products should be made conditional based on the language of the specifications. Particular care should be taken when approving an alternate product that is based upon notification of a deviation from the specification because this generally does bind the City to acceptance.
The purpose of this section is to provide guidelines and procedures for processing “substitution” and “or equal” submittals. Prompt, accurate, and objective handling of these types of submittals is important because they frequently form the basis of claims for large increases in dollars and/or time.
REFERENCES
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RESPONSIBILITIES
Contractor: “Substitutions” and “or equal” submittals shall be made by the Contractor. Submissions by the Contractor should imply the Contractor’s approval of the requested alternate item. Whenever any particular material, process, or equipment is indicated by patent, proprietary or brand name, or by name of manufacturer, such wording is used for the purpose of facilitating its description and shall be deemed to be followed by the words “or equal”. The Contractor shall make all “or equal” submittals within 30 calendar days after the issuance of the “Notice to Proceed” for the submission of data substantiating a request for an equal item.
Construction Manager (CM): The CM is responsible for reviewing the “substitution” and “or equal” submittal process with the Contractor during the Pre- Construction meeting and for issuing the appropriate change order when “substitution” submittals are approved.
Project Engineer (PE): The PE is responsible for the review and approval or disapproval of requested “substitution” and “or equal” submittals.
PROCEDURE
“Substitution” and “or equal” proposal submittals should be processed in accordance with the Shop Drawing procedures in Chapter 16, Procedure 16.1, with the following inclusions:
During the initial review of the submittal format, the PE or Technical Support Staff Reviewer should check to see that the Contractor has clearly identified each proposed “substitution” and “or equal” submittal, and referenced it to the corresponding contract drawing detail and/or specification section.
The Reviewers should make certain the Contractor has furnished adequate data to enable a thorough evaluation of the proposed “substitution” and “or equal”.
The Contractor shall, at its expense, furnish data concerning items offered by it as equivalent to those specified. The Contractor shall have the material tested as required by the PE to determine that the quality, strength, physical, chemical, or other characteristics, including durability, finish, efficiency, dimensions, service, and suitability are such that the items will fulfill its intended function.
Any required tests and test methods shall be subject to the approval of the PE who will evaluate the results and determine if the substituted items are equivalent. Installation and use of substituted items shall not be made until approved by the PE.
An “or equal” submittal received within 30 calendar days after Notice to Proceed should be reviewed and processed in the same manner as other submittals. If the submittal is received later than the time specified, it will be treated as a “substitution” and processed as noted below.
Approved “substitution” submittals should be clearly marked and returned to the Contractor with a letter stating that the Contractor is responsible for the cost of any engineering and design services required to make changes and adjustments in material and work of all trades directly or indirectly affected by the substitute item. The purpose of such a letter is to discourage the Contractor from later filing a claim for a changed condition because of an unforeseen consequence of the approved substitute item. Additionally, should approval of a substitute item result in cost savings to the Contractor, a change order should be issued to credit the City for the difference in value.
If a “substitution” submittal is not accepted, the Reviewer should clearly indicate that the rejection was based on differing salient features.
RELATED PROCEDURES
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