Proprietary Specifications

A proprietary specification is one which requires the use of a sole source product. Bidders are responsible for determining the cost and sources of the items specified. It is a contractor’s obligation to raise questions to the government concerning purported proprietary items prior to bid opening. The time for objecting to a proprietary specification is before the submission of bids, not afterward. Appeal of Gibbs Const. Co., ASBCA No. 44141, 95-1 BCA ¶ 27368; T.H. Taylor, Inc., ASBCA No. 26494, 82-2 BCA ¶ 15,877 at 78,753; see also Buchner & Moore, Inc., ASBCA No. 25186, 83-1 BCA ¶ 16,332.

In order to recover under a theory of proprietary specifications, a contractor must prove that (1) the specifications described the characteristics of only one standard product, (2) it submitted data describing an equal substitute product, and (3) the substitute was of the same standard of quality. Urban Plumbing and Heating Co. v. United States, 187 Ct.Cl. 15, 408 F.2d 382 (1969); Gall Landau Young Construction Co., ASBCA No. 24859, 83-1 BCA ¶ 16.

Updated: August 3, 2018