§ 133-3. Specifications to carry competitive items; substitution of materials.
§ 133‑3. Specificationsto carry competitive items; substitution of materials.
All architects, engineers,designers, or draftsmen, when providing design services, or writingspecifications, directly or indirectly, for materials to be used in any city,county or State work, shall specify in their plans the required performance anddesign characteristics of such materials. However, when it is impossible orimpractical to specify the required performance and design characteristics forsuch materials, then the architect, engineer, designer or draftsman may use abrand name specification so long as they cite three or more examples of itemsof equal design or equivalent design, which would establish an acceptable rangefor items of equal or equivalent design. The specifications shall state clearlythat the cited examples are used only to denote the quality standard of productdesired and that they do not restrict bidders to a specific brand, make,manufacturer or specific name; that they are used only to set forth and conveyto bidders the general style, type, character and quality of product desired;and that equivalent products will be acceptable. Where it is impossible tospecify performance and design characteristics for such materials andimpossible to cite three or more items due to the fact that there are not thatmany items of similar or equivalent design in competition, then as many itemsas are available shall be cited. On all city, county or State works, themaximum interchangeability and compatibility of cited items shall be required.The brand of product used on a city, county or State work shall not limitcompetitive bidding on future works. Specifications may list one or morepreferred brands as an alternate to the base bid in limited circumstances. Specificationscontaining a preferred brand alternate under this section must identify theperformance standards that support the preference. Performance standards forthe preference must be approved in advance by the owner in an open meeting. Anyalternate approved by the owner shall be approved only where (i) the preferredalternate will provide cost savings, maintain or improve the functioning of anyprocess or system affected by the preferred item or items, or both, and (ii) ajustification identifying these criteria is made available in writing to thepublic. Substitution of materials, items, or equipment of equal or equivalentdesign shall be submitted to the architect or engineer for approval ordisapproval; such approval or disapproval shall be made by the architect orengineer prior to the opening of bids. The purpose of this statute is tomandate and encourage free and open competition on public contracts. (1933, c. 66, s. 3; 1951, c.1104, s. 5; 1993, c. 334, s. 7.1; 2002‑107, s. 5; 2002‑159, s. 64(c).)