An attorney's view of proprietary specs

In the October 2002 issue, various authors championed the pros and cons of proprietary specifications in "In their opinions," page 18. The writers listed numerous advantages for using proprietary specifications, which ultimately yield far greater returns to building owners and the tax-paying public.

However, one author strongly advocated against the use of proprietary specifications, citing several disadvantages. Unfortunately, this author's arguments are based on the mistaken assumption that "proprietary" means proprietary "product" specifications. Public bid proposals written around a manufacturer's proprietary "product" specification may, in fact, limit competition.

But as the other writers seem to understand, the industry frequently uses the phrase "proprietary specification" when referring to another category of specification that might more objectively be called "performance-based." Reputable roofing manufacturers that differentiate their products based on objective, laboratory-proven, performance-based specifications provide a great service to the roofing industry.

As an attorney specializing in construction litigation, I think it is important to differentiate specifications that cite a proprietary product name from those that define specific criteria for material or service performance.