Let’s say you had a specification that expressly required you to provide a Honda Civic by name but then clearly described a Chevy Blazer. Do you provide the name brand as listed, or do you provide a vehicle that meets the detailed description? This is similar to a question presented in a recent case, and the judgment might surprise you.


The Veterans Administration (VA) was renovating a facility in Pittsburgh. Among the required items was a headwall system with consoles built in, electrical components and gas piping. The VA designers had researched this kind of system and decided they wanted a Hill-Rom system. However, considering federal government guidelines that promote competition, the VA was concerned about listing the Hill-Rom system as a sole source. As a result, it added language in the specifications that said “Hill-Rom or equal.” It turned out there was no “equal” system.


Perhaps other VA designers were involved in drafting other sections of the specifications because, elsewhere, the designers listed “salient characteristics” of the headwall system without mentioning Hill-Rom. In any event, many of these added characteristics were not available from Hill-Rom or for any stock wall system, indicating that the contractor would have to get a custom-designed product.


Apparently, the contractor did not catch the disconnect between the specifications for the brand-name wall system and for the system’s salient characteristics. The contract was clear on at least one point: Had the contractor wanted to submit an “or equal” wall system, any such product had to be “clearly identified in the bid and … determined by the Government to fully meet the salient characteristics requirements listed.” (Emphasis was added.) The contractor did not propose an “or equal” in its bid.


During the job, the contractor sought approval of the Hill-Rom system, and the government rejected the submission because the system did not meet all of the salient characteristics. The government then raised an unusual argument. It took the position that, in fact, no product could meet its own specifications. Furthermore, because the specified product did not exist, the government argued that its specifications were patently ambiguous, and, thus, the burden was on the contractor to have raised this issue at bid time. Because the contractor had not done so, the government contended that the contractor had to provide a custom system that was essentially a modification of the Hill-Rom product.


In this case, the government created the underlying problem. In a “brand name or equal” specification, the government is supposed to list the salient characteristics that are part of the brand-name product and are considered essential. This way, a contractor can know whether another product can be considered a true equal—i.e., one that meets the brand name’s characteristics.


Here, however, the two different sections of the specifications were misaligned. So what was the contractor’s obligation: to provide the Hill-Rom off the shelf, a Hill-Rom with modifications, or some uniquely fabricated system that had some Hill-Rom characteristics?


This was presented to a federal Board of Contract Appeals for decision. The board’s action can be considered wise, though the legal basis is somewhat vague.


Typically with an “or equal” option, a contractor will try to find a less expensive, alternative product that may save time and money, and thereby make the bid more competitive. Many, if not most, “or equal” cases turn on whether the proposed substitution meets the salient characteristics of the listed brand name. 


This VA case was just the opposite. The contractor was prepared to supply the name brand as listed. The board said the listed name brand takes precedence over the detailed characteristics specifications.


According to the board, “[w]hen the Government designates the product as a brand name … a contractor can bid on that product notwithstanding whether the product conforms to otherwise listed salient characteristics or not.”


In other words, the contractor is free to ignore the conflicting specifications.


A word of warning: The board noted that, if the contractor had proposed an “or equal” alternative, the listed salient characteristics would have to be met. (Logically, such an alternative would not be a true equal to Hill-Rom.)


So, to solve the dilemma above: if you supplied the Honda Civic, you would be safe. If you proposed an equal, it had better be the Chevy Blazer that meets all of the salient characteristics.