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Contract Substitutions

Contract Substitutions

John R. Morey, M.ASCE


(This article originally appeared in the Winter 2010 issue of the Construction Zone.)

In the last issue, I provided an example of the potential hazards of using the “Or Equal” clause. On the other hand, there are times when substitutions may be considered by the engineer.

Whenever an item of material or equipment is specified by using the name of a proprietary item or the name of a particular supplier, the specification or description is intended to establish the type, function and quality required. Unless the specification or description states that "or equal" items are permitted, alternative material, equipment, or other suppliers may be considered by the engineer under a request for substitution. Requests for review of proposed substitute items of material or equipment should not be accepted by the engineer from anyone other than the contractor.

In order for the engineer to determine if a proposed substitution meets the functional and quality requirements of the specified product, the contractor must submit sufficient information to facilitate the analysis. The contractor should first make written application to the engineer for consideration of the request, certifying that the proposed substitute will perform adequately the functions and achieve the results called for by the general design, that it is similar in substance to that specified, and that it is suited to the same use as that specified. The application should state the extent, if any, to which the evaluation and acceptance of the proposed substitute will:
• adversely impact the contractor's ability to achieve “substantial completion” on time;
• require a change in any of the contract documents to adapt the design to the proposed substitute (or a change in the provisions of any other direct contract with the owner for work on the project);
• be subject to payment of any license fee or royalty; and
• affect costs - an itemized estimate of all costs or credits that will result directly or indirectly from acceptance of such substitute, including costs of redesign and claims of other contractors affected by the resulting change.

All variations of the proposed substitute from that specified should be identified in the application, including available maintenance, repair and replacement service information. All of this information may be considered by engineer in evaluating the proposed substitute. The engineer may also require the contractor to furnish additional data about the proposed substitute. Consequently, although their use is suitable under some circumstances, a thorough consideration needs to be made prior to accepting substitutions.

John R. Morey is a former member of CI’s Specifications Committee.