November Meeting – November 13, 2006
Proprietary Specifications: Hypotheticals Discussion
By Nathan Semsch, J.L. Sullivan Construction, Inc.

A full house took part in an enlightening and serious discussion pertaining to the issues of proprietary specifications in public projects. The presentation was lead by Robert Smith and Mary Schwind, attorneys at law with Leonard, Street and Deinard. Rob and Mary focused on the current state of proprietary specification in state and federal law and referenced past and current cases that involve proprietary specifications.

The State of Minnesota does not have any statute that specifically covers the issue of proprietary specifications for public construction projects. The closest statute (Minn. Stat. §471.35) involving proprietary specifications states “When any county, city, town, or school district calls for bids for the purchase of supplies or equipment, specifications shall not be so prepared as to exclude all but one type or but shall include competitive supplies and equipment.” However, court cases have proven that this statute does hold for construction project, only items specifically stated in the statute.

Rob and Mary offered a number of strategies to avoid drafting proprietary specifications in public projects:

- Draft “or equal” specifications and allow substitution of substantially equivalent products.
- Draft specifications that allow for more than one manufacturer/supplier and include criteria that is reasonably necessary for the goal.

It was stressed that proprietary specifications are not black and white but very much grey and the discussion that followed the Rob and Mary’s presentation clearly brought that point to light. The discussion revolved around hypothetical issues that Rob and Mary presented to the group for discussion. Examples of specifications for both public and private projects were given and the audience was left to decide how t o proceed. Discussion was vigorous at times with many viewpoints being expressed – architects, specifiers, product representatives, contractors, etc. – all adding a great deal of insight to the discussion. At the conclusion of the meeting the question arose as to how does CSI determine how best to approach the issue of proprietary specifications as a group and whether or not an effort should be made on an organizational level to work for change in the statutes of Minnesota law. It was an excellent topic for discussion and one that could continue for quite some time.

November Meeting Photos