WHERE A SPECIFICIATION CALLS FOR MATERIAL FROM A NAMED SUPPLIER “OR OTHER APPROVED”, CAN THE PRINCIPAL AGENT OR ARCHITECT REFUSE TO APPROVE AN ALTERNATIVE SUPPLIER PROPOSED BY THE CONTRACTOR?

The question of an Architect's right to refuse an alternative supplier proposed by the Contractor where the contract documents named a supplier "or other approved" was the subject of the dispute in Leedsford Ltd v The Lord Mayor, Aldermen and Citizens of the City of Bradford (1956) 24 BLR 45. The defendant Council wished to have a new infants' school built. Contract documents including bills of quantities were prepared and submitted to contractors for pricing. Provision was made in the bills for artificial stone which was to be used in the following item:

"Artificial Stone ..... The following to be obtained from the Empire Stone Company Limited, 326 Deansgate, Manchester or other approved firm ......".

The successful Contractor proposed that the artificial stone should be supplied by HK White (Precast Concrete Works) Ltd and Spencer Parkinson and Sons Ltd and sought the Architect's approval. The cost of stone from Empire Stone was £1,250 compared with £500 from the alternative supplier.

The Architect refused to approve the alternative supplier insisting the stone be obtained from Empire Stone.

The matter was referred to the Court by the Contractor who claimed the difference in the cost of stone. The Contractor contended that those words had been inserted for the Contractor's benefit. It was argued that they had the right to put forward and obtain approval for any firm who would supply stone of the proper quality at a price less than the price which Empire Stone Company Ltd would charge. It was further argued that the Architect had broken the contract when he insisted that the stone be obtained only from the Empire Stone Company Ltd.

It was held in the Court of Appeal that the words "or other approved firm" did not give the Contractor an option to submit any firm of their choice for the Architect's approval. The words ".... to be obtained from the Empire Stone Company Limited.... or other approved firm" should be analysed in the following way:

"the builder agrees to supply artificial stone. The stone is to be Empire Stone unless the parties both agree some other stone, and no other stone can be substituted except by mutual agreement. The builder fulfils his contract if he provides Empire Stone, whether the Bradford Corporation want it or not; and the Corporation Architect can say that he will approve of no other stone except the Empire Stone".

Accordingly, the position was that there was an absolute obligation on the Contractor to supply Empire Stone unless the Architect should give his approval to some other stone. Moreover, the Architect was not bound to give any reasons for withholding approval of any other firm. The most that was required of the Architect was that he should act in good faith and no allegation against his good faith was made.

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