Johnson C Blake, publisher of The Specifying Engineer, wrote several years ago about a Supreme Court ruling regarding the responsibilities of sellers and specifiers during a purchasing event.
The case started in the U.S. District Court of Massachusetts, Whitten Corp vs Paddock Inc on April 12, 1974. The First Federal Circuit Court firmed the District Court ruling in December of 1974, followed by the Supreme Court. The Supreme Court has rejected any appeal or any further review.
Four Major Judgments
According to Blake, the four major judgments are:
1. Court ruled that a proprietary specification (one brand only) is not a violation of anti-trust laws. Further, the court stated that trained professionals (specifiers) make informed judgments on the systems which best serve their clients.
Comment:Â Technically, few brands of equipment are exactly alike. If the engineer decides to limit his specification to one brand and model he has the responsibility to do so and enforce his specification.
2. Court ruled that other manufacturers and suppliers can qualify “as equal” only when the specifier chooses to waive his brand or model specification.
Comment: The court clearly stated that a contractor or supplier cannot decide which product to install “as equal”. The specifying engineer is the primary decision maker. The specifier can decide to allow other products if he believes it meets his client’s needs for the entire project outcome.
3. Court stated the specifier “will waive specifications in order to obtain a better product for his client”.
Comment: Again implying the specifier has the duty and responsibility to determine what product is installed. Suppliers and contractors cannot make that decision. From project inception to conclusion the specifier is the prime decision maker, making the best choices for his client’s best interest.
4. Court concluded, “The burden is on the supplier who has not been specified to convince the specifier that his product is equal for the purposes of a particular project. This reduces itself to a matter of salesmanship.”
Final Thoughts
This case did not mention much about the rights and responsibilities of the owner, the people buying the project. Ultimately the owner has the final say. If they want a certain brand, model, supplier, or contractor all they have to do is say so. Whoever is spending the money has the right to buy from and buy whatever they want.
Low price does not trump the owner’s right to buy whatever they want. An owner can choose any product and service from whatever supplier they want regardless of the cost. Just because a certain supplier or contractor bids a lower price, the owner can decide to purchase a higher priced bid for any reason they decide valid. It’s their money, their property, and their aspirations.
Specifiers work on behalf of the owner. Most owners do not know enough to make wise design or product selections for complex systems. Specifiers provide expertise and experience to help the owner achieve their objectives. Thus a specifier must have the control of what product, installation methods, and system construction takes place to assure they are meeting their responsibility to the owner.
This Supreme Court ruling has been interpreted by some as a requirement to specify a brand and model for system components, not just a performance specification. Such interpretation was not directly supported in the ruling.
