Government Contracts Contractor Entitled to Submit Equal Product
Tuesday, April 20, 2021

Contractor Entitled to Submit Equal Product

By Government Contracts Editorial Staff

The Armed Services Board of Contract Appeals sustained an appeal seeking additional compensation because the construction contractor established a roof deck specification was proprietary, which permitted it to submit an equal product. The contract to build an elementary school addition required the contractor to provide a 2½-inch thick acoustical roof deck at various locations. During performance, the contractor sought to substitute a 2-inch thick deck, asserting the 2½-inch deck was a proprietary product, but the government rejected the contractor’s request. After agreeing to provide a 2½-inch deck, the contractor sought compensation for providing the thicker product. The government argued it was entitled to strict compliance with its specifications and that it advised the contractor to submit the 2-inch deck as a variation, but the contractor refused to submit the variation. The contractor countered the specification requiring 2½-inch thick roof deck was proprietary and that FAR 52.236-5, Material and Workmanship, entitled it to submit a 2-inch thick roof deck product that was equal in all important performance requirements.

Proprietary Product. A specification is proprietary when it describes an item that can only be obtained from one source, even when a brand name is not expressly designated (97-2 BCA ¶29,283). The government provided no evidence that challenged the quality of the 2-inch deck or rebutted the contractor’s determination that there was only one manufacturer that could provide the 2½-inch roof deck. Accordingly, under FAR 52.236-5, the contractor had the right to submit an equal substitute. In addition, the contractor established the government’s refusal to consider the equivalency of the 2-inch deck was “an unreasonable exercise of judgment.” The government could have demonstrated there was another source for the 2½-inch deck or conducted a structural engineering analysis, but except for one “cryptic comment,” there was no evidence indicating the government seriously considered the contractor’s evidence that the 2-inch deck was equivalent to the 2½-inch deck. (Carothers Construction, Inc., ASBCA, ¶96,234)

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