Letters

In the October 2002 issue, various authors championed the pros and cons of proprietary specifications in "In their opinions," page 18. The writers listed numerous advantages for using proprietary specifications, which ultimately yield far greater returns to building owners and the tax-paying public.

However, one author strongly advocated against the use of proprietary specifications, citing several disadvantages. Unfortunately, this author's arguments are based on the mistaken assumption that "proprietary" means proprietary "product" specifications. Public bid proposals written around a manufacturer's proprietary "product" specification may, in fact, limit competition.

But as the other writers seem to understand, the industry frequently uses the phrase "proprietary specification" when referring to another category of specification that might more objectively be called "performance-based." Reputable roofing manufacturers that differentiate their products based on objective, laboratory-proven, performance-based specifications provide a great service to the roofing industry.

As an attorney specializing in construction litigation, I think it is important to differentiate specifications that cite a proprietary product name from those that define specific criteria for material or service performance.

The success of our country is based on our unwavering history and tradition of innovation and ingenuity. Our judicial and tax systems consistently preserve this tradition by encouraging and protecting research and development and product performance improvements.

There is a longstanding legal precedent in the United States defending public-sector discretion in establishing tight specifications with the support and assistance of material and service providers; some rulings follow:

• In 1985, the U.S. Court of Appeals, Second Circuit, defended the right of the Georgia Department of Agriculture to write its specification around a high-performance roofing manufacturer's performance specification.
  
  
• In 1994, a U.S. District Court defended the right of the East Penn School District to write its specification around a high-performance roofing manufacturer's performance specification.
  
  
• In 1999, the Iowa Supreme Court defended the right of the Pekin Community School District to hire a high-performance roofing manufacturer's representative to develop plans and specifications and supervise product installation. The court clearly stated the situation did not constitute a conflict of interest on the part of the manufacturer's representative.

The minimum-needs standard never was intended to inflict shoddy quality upon beleaguered public officials. Time and again, our courts have defended the right of public-sector facility managers to consider four factors when defining their minimum needs: initial cost, life-cycle cost, useful life of the structure and how critical a product is.

It has been my experience that the use of performance-based specifications tends to reduce liability risks for roofing contractors and design professionals in the private and public sectors. The public bid process empowers public agencies to enjoy the free-market privilege of negotiating an appropriate balance between quality and price.

Robert L. Bencini
Duke, Holzman, Yaeger & Photiadis LLP
Buffalo, N.Y.

Callback: In "Insulation boards bridge to the 21st century," January issue, page 22, it incorrectly stated that Carmel, Ind.-based Firestone Building Products Co. has conducted independent long-term thermal-resistance testing. The article should have stated Atlas Roofing Corp., Meridian, Miss., has independently conducted such testing. Professional Roofing regrets any confusion this may have caused.