Chapter 27.20

DESIGNATING A MATERIAL, PRODUCT, SERVICE OR BUSINESS

Parts:

• 1 "Or Equal" Requirement 2 Exceptions To "Or Equal" Requirement

Part 1

"OR EQUAL" REQUIREMENT

Sections:

27.20.040 Substitution request.

27.20.050 Equivalency.

This Chapter addresses the use of specifications directing a Contractor to use a designated material, product, service or business. (Ord. 30308.)

The provisions of this Chapter are intended to conflict with California Public Contract Code Section 3400, as it may be amended, and with any other section(s) of the Public Contract Code covering the use of a designated material, product, service or business.

(Ord. 30308.)

Except as otherwise provided in Part 2 of this Chapter 27.20:

• A. A specification calling for a designated material, product, service or business must be followed by the words "or equal" so that Contractors may provide any equal material, product, service or business;

• B. A specification calling for a designated material, product, service or business that is not followed by "or equal" will be read as including "or equal;" and

• C. A Contractor must use the material, product, service or business designated in a specification unless the Contractor requests and obtains the Director's approval to substitute a different material, product, service or business in accordance with this Part 1.

(Ord. 30308.)

• A. A Contractor may request to substitute an equivalent material, product, service or business for the one designated in the specification(s).

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SAN JOSÉ CODE

§ 27.20.040

• B. A Contractor's request for substitution must be in writing and must comply with the requirements in the applicable specification(s).

• (Ord. 30308.)

• A. The Contractor's request for substitution must demonstrate to the Director's satisfaction that the proposed substitute material, product, service or business is equivalent in all material respects to the one designated in the applicable specification(s).

• B. The Contractor's request for substitution must provide the information, test data and other documents reasonably required by the Director to fully evaluate the equivalency of the proposed substitute material, product, service or business.

• C. The Director may require independent testing, including destructive testing, of the Contractor's proposed substitute material or product.

• D. The Contractor must bear all expenses associated with its substitution request.

• (Ord. 30308.)

(Ord. 30308.)

• A. The Director will issue a written decision in response to each timely substitution request.

• B. The Director's failure to issue a timely written decision in response to a substitution request will be deemed a rejection of the request.

• C. The Director's decision on a substitution request is final.

• (Ord. 30308.)

If the Contractor's request for substitution is approved, then the following applies:

• A. The Contractor bears all direct and indirect additional costs resulting from using the substitute material, product, service or business; and

• B. The Contractor must credit the City with 50 percent of any net cost savings resulting from using the substitute material, product, service or business.

• (Ord. 30308.)

Part 2

• A. The specifications will state a period before, after, or before and after the award of the Public Works Contract within which the Contractor must submit a substitution request.

• B. If the specifications do not state a period within which the Contractor must submit a substitution request, then the Contractor must submit the request on or before 35 Calendar Days after the award of the Public Works Contract.

• (Ord. 30308.)

• A. The Director has discretion to consider a substitution request not submitted within the time set forth in the specification(s).

• B. If the Director denies an untimely substitution request, the Contractor must use the material, product, service or business designated in the specification(s).

EXCEPTIONS TO "OR EQUAL" REQUIREMENT

Sections:

Notwithstanding anything to the contrary in this Chapter 27.20, the Director may require the Contractor to use only the designated material or product in accordance with this Part 2. (Ord. 30308.)

To require a Contractor to use only the designated material or product, the Director must make

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PROCUREMENT OF PUBLIC WORKS

§ 27.24.010

a written finding that the material or product is designated for at least one of the following purposes:

• A. To conduct a field test or experiment to determine suitability of the material or product for City use;

• B. To match other materials or products already in use by the City, including, but not limited to, technology purchases required to achieve interoperability with existing hardware, software, systems or programs;

• C. To obtain a necessary material or product that is available only from one source;

• D. To respond to an imminent threat of harm to the health, safety or welfare of one or more persons as the result of an emergency; or

• E. To achieve significant cost savings based upon consideration of the following factors:

  1. Timeliness and quality of installation, repair and maintenance;