Dispute

Archive of Older Topics Archive - Specifications Discussions #5
1

I am having getting a product approved (post bid phase). The facts are these.

  1. Product is a dock leveler.

  2. The specs called out for a specific manufacturer and model number

  3. The manufacturer changed the model number prior to the bid and some modications were made regarding what features are optional and standard.

  4. We are not a distributor of the basis of design manufacturer, but a manufacturer we distribute was listed in the specs as an acceptable manufacturer. The basis of design manufacturer’s website does not provide complete specs of their products and the manufactuer will not give them to me since I am not a distributor.

  5. It appears to me the specs do not describe the model that is supposed to be the basis of design. I believe some changed the model number of an existing spec, but did not change the description.

  6. Specs called the leveler to be 6’6" wide. The architect says the leveler is to be 8’6" wide, because that is the the only width the basis of design model is available.

  7. The specs call a NEMA ICS 6, type 12 enclosure for the control station. I submitted a type 4X enclosure and documentation that the 4x is superior. The architect says the spec calls for a type 6 enclosure (submersible type).

  8. The specs call for a unlimited use warranty. I stated that the spec’d manufacturer won’t provide that and neither will my manufacturer.

  9. The specs don’t mention of a particular option the architect desires, but he wants it provided, since the outdated model number he put in the specs had this feature as a standard, the new model number he provided, this feature is an option.

I have been back and forth with the architect several times regarding these points (through the general contractor). The general contractor says he is siding with me, but I really don’t see any evidence of this.

Am I wrong to think the specs should describe the model number that is contained in the spec?

Or does “basis of design” out weigh anything that is written in the spec description?

It would be very tedious for contractors and suppliers to have to verify that the spec description and matches the “basis of design” product spec.

I’d appreciate any feedback on this and maybe some tips on how to deal with this architect.

2

Post Bid phase. That is the key. I really don’t care about any of the product details. What you need to describe to this forum is what transpired during the bid process. Were there any Bid RFI’s seeking clarification about these discrepancies? Was there an addendum issued by the Architect that clarified the Basis of Design and/or the desired features?

Here is the harsh reality: Your post reads with an attitude that you have a sense of entitlement, but you do NOT actually have any entitlement due to the timing of your interaction if it has all been post-bid.

If you are maneuvering to get into the project post-bid only and solely, the only advice I can offer you is to address what the Architect has clarified that they want. If you can provide it, great. If you can’t, move on to the next job. If you CAN provide it, demonstrate this clearly and simply, AND, as you seem to have done, demonstrate also where the specified product cannot meet the architects design goals. BUT DON’T HARP ON THE INCONSISTENCIES IN THE SPEC. Doing so will not buy you any additional consideration or time with the architect. And post-bid, you have few options and fewer opportunities.

And going back to your arguably false sense of entitlement, the fact that the GC is burning time dealing with you at all and forwarding your correspondence to the architect does indeed suggest that they are at the very least, giving you more emphasis than they need too.

3

One last thing. The architect has already spent his fee designing this once. Substitutions can be viewed as nothing more than additional drains on fee and time that are often uncompensated. There is very little desire on an architects side to review substitutions post-design.

Alternatively, and this happens often, you can be providing a real service. You know your product, and if you approach this as a team partner, with the attitude of making sure the architect and owner get the product best suited to their needs, then your interaction can be quite welcome, “saving” the team from a potentially costly mistake.

You’r attitude and approach will define how you are received.

4

I must disagree somewhat with Mr. Woods’ observations. I have long had nightmares about what could happen between the time something gets selected and specified and the time something is purchased and installed. Some products don’t change very often while others seem to always be changing (like residential appliances).

The purpose of the specifications and the drawings is to clearly show the salient characteristics of a product that are required for the project (like dimension, materials, service, etc.). Many architects feel that if they have identified a particular product, they don’t really have to go any further in describing that product. I prefer to document those characteristics in the specifications so that a comparison of comparable/equivalent products can be made without referring to the product literature.

In this particular case, it sounds to me like the specifier didn’t do a very good job in identifying the required salient characteristics, and the error was compounded by a model change. In this particular instance, a case can be made that the new model does not meet the identified salient characteristics identified in the specifications.

This is not a pre-bid / post-bid situation, but one in which, it has become difficult to sort out what the Owner’s requirements really are. If the Bidding and Contract Documents are to be meaningful, they should not be vague suggestions where everyone assumes that everyone basically knows what is needed and the Drawings and Specs are just so much landfill material taking up office space until they are consigned to their true application.

While I can side with the vendor’s situation, it do find the posting to have a bit too much whine (wine does turn to vinegar, you know). By establishing “sides” which need to be taken instead of finding out what the Owner really needs or wants, the vendor runs the risk of (1)getting a contract to provide a product that the Owner really doesn’t want, and (2) alienating an Architect who may simply exclude that product from consideration in the future. This may be developing into a fight that you did not intend to choose, but from which, winning may be a losing proposition.

5

  1. When I say post bid issue. I mean the following: We bid the project with an approved manufacturer. We submitted our bid before the bid time. We have a contract with the GC. My submittals were rejected because they didn’t “meet” specs. I should of clarified this more. Our product was rejected after the bid during the submittal process.

  2. This is not a substitution. The manufacturer I submitted was listed in the specs. It met the written criteria in the specs.

  3. The only sense of entitlement I have is to be treated fairly.

  4. It’s time draining for me when I have to explain to the architect what it is incorrect. It’s part of my job though,. (I had to explain the difference in NEMA boxes).

  5. Our takeoff person is an RFI machine. If he catches an error or needs a clarifications he asked for it. I really don’t expect him to verify the competitior’s model matches the written specs. We can’t catch all errors and conflicts.

  6. One of requests I have in my post that I want feedback on was regarding “Basis of Design models” vs was is actually written in the spec.

  7. Manufactures make these model changes all of the time. It’s difficult for the distributors to sort out, let along competing distributors, specifiers and architects.

  8. It’s a big cost issue, not only for me, but for the contractor. Pit is completed and is too narrow.

  9. This is an indoor dock. The product was spec’d and bid as galvanized. I offered to credit for the galvanizing, but I don’t have a response.

  10. To be fair, the architect has approved all of my other products on this project, but somehow we got sideways on this one. Dock levelers are usually a pretty simple product to bid and get approved.

I’m still going to work on deleting the galvanizing and providing the option that he wants.

I think we can get by the warranty and NEMA box issue, but the width problem could be a tough one to get by.

6

I didn’t see the original post as whining; randy was simply stating the problem. The end result would be the same, but I suppose he could have said the contractor agreed with him, rather than sided with him. (I’m assuming randy is a he.)

The bidder is entitled to “think the specs should describe the model number that is contained in the spec” in general, but that does not mean the bidder doesn’t have to verify. The specifications and drawings take precedence over the basis of design, so there may well be differences between the manufacturer’s literature and the specifications. Both specifier and bidder must be careful of conflicts. And specifiers must be careful to not specify something that isn’t available.

randy does have some legitimate complaints, but they should have been addressed during the bidding period. If the specifications did not agree with the the basis of design, he should have asked the architect for clarification.

7

It sounds like randy thought that the product being submitted was appropriate since it met the salient features specified.

As I recall from an attorney who has presented several times at CSI functions, courts tend to favor the more specific information over the more general. Unfortunately when you have a model number and then list non-conforming salient features, that’s an issue. I can appreciate the architect feeling that listing the model was enough to ‘buy’ the formerly standard features. It is unfortunate that those ‘standard’ features were not listed in the spec since it would have clarified this condition. Still, we’re taught to say it once with the intent of not repeating extraneous information so we can’t really fault the architect or specifier. They specified a product in good faith.

Part of my confusion here is that if the specified model has been discontinued and replaced with a new product, doesn’t the new product have a different model number? Was randy’s submitted product equivalent to the old product in terms of footprint and capacity or did randy bid strictly based on the list of salient features? I’m not sure how the submitted product can be that different from the specified product. Didn’t randy’s ‘RFI machine’ check to see if the product being submitted was in fact equal to the specified product? Seems to me that this is exactly the kind of thing that should have been caught early. Even if the submitted product doesn’t have to be handled as a substitution, it still needs to be vetted before it is submitted.

It’s unfortunate that this has happened but this sounds like the wisdom of Solomon may be called for. I’m not sure who needs to ‘take the hit’.

8

Either Randy was innocently caught up in an inconsistency, or he is trying to take advantage of some specific knowledge he had in the model change. If the latter, he chose a time-consuming way to make a buck. There is not a cut-and-dried solution to this. I foresee one or two meetings, very detailed, about the inconsistencies and time line, to negotiate a solution.

9

The problem with the basis of design specs is that an assumption is made that the “basis of design” manufacturer has their specs available to competeting manufacturers. I don’t when the model number changed and what options changed. Sometimes we can’t get all of the details from a competitor. I can’t get them now.

Do you think an RFI question such as “The basis of design manufacturer will not provide a complete and accurate specification to their product. Please verify that everything in the spec is correct and that all desired features, options, finishes, and sizes are listed in your spec” out of line?

Is there a better way of asking that question?

Will or can I get a positive response from that question?

10

I’d leave the first sentence out. There’s no need to try to place blame or be accusatory. Simply request the interpretation/information. You might create a bulleted list of the salient features as you see them and provide a checkbox or some similar way to allow the responses.

But I think Tony’s solution is probably the most efficient and logical way to proceed. A face-to-face will accomplish the most with the least confusion.

11

The product should meet the characteristics of the model listed in the specs, with features and options of that model at the time. A change in model number of the BOD manufacturer does not change what the spec required. Unfortunately, it IS the job of the manufacturer or distributor who wants to substitute to figure out exactly what that was at the time. It sound like the slew of RFIs is trying to get the architect to do the work of the contractor/sub. If that information is simply unavailable, I’m not sure how you bid the unit to begin with. If the architect now has different requirements, you can try to negotiate a price differential if you can demonstrate what has changed from the requirements in the specs. Be careful that other changes that may not really be needed, such as the galvanizing and NEMA device, are not conflated with meeting the spec. These should be discussed separately as value passed on to the owner, not as “we didn’t include this because you didn’t really need it, so you don’t ‘own’ it.”

In the end, the architect is not under any obligation whatsoever to accept a substitution, so you really need to be able to put yourself into the “we can add value” mode, rather than “we think we gave you what you need and are due to get the work.”

Another complication: from my experience, owners usually have no idea what kind of leveler they need: they don’t know what kind of traffic the leveler needs to withstand, they don’t know what kinds of trucks are backing up to it, and they don’t know who’s going to be the person operating it. This can result in changes during construction as this becomes more apparent. This may not be the case in this project, but if there is this possibility, you may be able to solve everyone’s problems at once by offering expertise to figure out what product best suits the owner’s needs. This would require meeting with the owner and architect, of course, which could be hard to set up. If you can accomplish that, though, you could be the architect’s hero rather than their annoyance.

12

Once again this is not a substituiton.

Specs say " Subject to compliance with requirements, provide the named product or a comparable product by one of the following: Then the specs list 4 different manufacturers.

The spec goes on to list the size, the function, operaing sytems, construction, and accessories.

The product I submitted meets or exceeds all of those criteria.

I believe the owner has no idea what he is getting. This is a huge project and leveler will be used very little. Two of the optional features that are very expensive aren’t used very often on indoor docks.

I just question using “Basis of Design” in a spec. The spec says the products need to be “comparable”, not once, but twice. These products are definitely comparable.

I’m not trying to pick on the architect, I just question the use “basis of design”.

What do I need to include that is not written in the spec?

There is no way we can always get all of the details from our competitors all of the time.

Manufacturers will often tell us they can make a modification to a product that is not in any of their literature.

My point is, if the feature/option is that important, please put it in the written specs.

I bet the specifiers in this forum already do that.

I think this spec was the victim of a last minute “edit”.

13

I’m going to agree with John’s last paragraph. Not only do many Owners have no idea what type of leveler they need, but most Architects don’t even enough about levelers to ask them. You really could be solving problems and adding value by talking to them about a day in the life of their loading docks.

14

"Once again this is not a substituiton. "

Actually, from the architects perspective, it is a substitute. If it’s anything other than the unit the Architect based the design on, then it is a substitution, even if its from a listed alternate mfr. All that changes is the procedure, where a listed mfr does not require the full substitution form as part of the submittal. But effectively, in the architects view, its a substitution if there are variations of any significance to the unit used as basis of design.

Your mfr source may be an allowable alternate, but a lot of building components require a specific design to accommodate a specific unit. Anything other than the basis of design product can cause all kinds of other changes, power, venting, space allocation, etc…

I completely agree that with your particular product, the issues may be neglible, but that is not always the case. I have had elevator substitutions that completely didn’t work. Same for HVAC units, and many others.

The basis of design is a relevant standard, because when the Architect is laying out the building, he gathers the product info, makes his selection, and then builds into the drawings the infrastructure that selected product needs. Ideally, that product selection binder or digital folder is shared with the spec writer, who provides a matching written description in the spec.

As to why you need to include what was not written into the contract documents, that’s a slippery one. As many have indicated to you, (including myself), you have an opportunity to be a benefit to the project by educating the client and architect about what they really need. Or you can say “F* that, I’m under no obligation to do that.” which is a legitimate response as well, particular if it effects your business negatively.

In my opinion, you’re best option is to submit what is specified, with a letter stating that they would be better served using an alternate because of the following factors (insert here), and that this alternate would result in a (credit/add) of X amount should they choose it.

15

I believe the definition of substitute per the specs different then yours. When a this spec says “provide a comparable product from the list of manufactures below”. If you provide one of those manufacturer’s, its not a substitution.

I will take you definition into consideration when quoting any projects that have “basis of design” specs. (I’m guessing that only 10%-20% of projects we quote actually use the term “basis of design”

Section 01 60 00 Product Requirements of this spec defines Comparable Products and Basis of Design. I don’t believe the architect can reject the submittal on name only once the product is in the spec as comparable. The sections specifically states again" Provide specified product or comparable product by named manufacturer". I wish I could attach this spec section to the post. However, this spec section is a little confusing and could be up to debate.

I can’t supply the basis of design manufacturer because we aren’t a distributor for them.

If I would have bid the basis of design product (new updated model), my submittal would still have been rejected because of size, warranty, and not providing one of the options.

I think I emphasized the manufacture’s name too much in my post when I should have emphasized the fact that product I submitted for approval didn’t meet the specs because the architect cited items that were not included in the written specs, but items that were included in the manufacturer’s brochure/specs.

The architect has no problem with the manufacturer I submitted. Sorry to mislead you on that point.

16

I also have trouble with “basis of design”.

By listing other acceptable manufacturers but not listing a specific model, there is an implicit statement that the additional manufacturer has a comparable product. The contractor relied on this assumption.

When I have seen products specified as a basis of design I am usually baffeled as to what they really want or are are they listing the other manufacturer so that they can claim that they have not sole sourced the product.

Since with rare exceptions no two products are totally comparable when an acceptable manufacturer is listed without a detailed list of properties the bidder is left to guess. This also allows the designer to be arbitrary in deciding on whether the products are comparable.

In my own designs (structural) I have sole sourced the product, listed multiple models, or provided the required properties. Anything else has been treated as a substitution.

17

This is what our modified version of MasterSpec has. Keep in mind not everyone uses the same criteria or definitions so you’ll want to check the Project-specific versions of Sections 016000 or 012500 and see what rights the Architect has afforded the Contractor:

Basis-of-Design Product: Where Specifications name a product, or refer to a product indicated on Drawings, and include a list of manufacturers, provide the specified or indicated product or a comparable product by one of the other named manufacturers. Drawings and Specifications indicate sizes, profiles, dimensions, and other characteristics that are based on the product named. Comply with requirements in “Comparable Products” Article for consideration of an unnamed product by one of the other named manufacturers

2.2 COMPARABLE PRODUCTS
A. Conditions for Consideration: Architect will consider Contractor’s request for comparable product when the following conditions are satisfied. If the following conditions are not satisfied, Architect may return requests without action, except to record noncompliance with these requirements:

  1. Evidence that the proposed product does not require revisions to the Contract Documents, that it is consistent with the Contract Documents and will produce the indicated results, and that it is compatible with other portions of the Work.
  2. Detailed comparison of significant qualities of proposed product with those named in the Specifications. Significant qualities include attributes such as performance, weight, size, durability, visual effect, and specific features and requirements indicated.
  3. Evidence that proposed product provides specified warranty.
  4. List of similar installations for completed projects with project names and addresses and names and addresses of architects and owners, if requested.
  5. Samples, if requested.

Based on this, I would agree with randy that this is not a substitution. On the other hand, I believe this clearly still requires that randy generate that list, similar to what Lynn advised earlier, of the salient features offered by the specified product (or at least those listed in the spec) and those offered by the Contractor. Side-by-side comparisons are always helpful and it is, in fact, the role of the Contractor when providing something other than the actual product listed to provide this information to enable the Architect to compare the products and make a decision. If the Architect comes back and says that the proposed product is deficient in some way, it may be appropriate for the Contractor to request that the Architect provide access to a copy of the catalog cut of the specified product if there is no other way to obtain that information. If the specified product is no longer available, the Architect needs to acknowledge that. If the specified model number no longer offers the same features, but still uses the same model name or number, that seems to me that it’s what the Project ‘bought’. If the specified product has been discontinued, it is not unreasonable to require that the substitution process be invoked if a comparable product is not available.

One last item, and I’m speaking for myself only: If the specs or drawings provide detailed information regarding the footprint of the item, capacity, and other salient features it would not seem unreasonable for the Contractor to be able to use that information. It was included in the Contract Documents. If the specified product clearly is not compliant with the other information provided by the Documents so that a discrepancy clearly exists, it does not seem reasonable to proceed until that discrepancy is resolved.

It seems fair to say that clear information does not seem to have been provided, based on randy’s input here, so an RFI would seem appropriate. Having said that, I would suggest that the tone of the RFI be one of seeking clarification, again noting the known information based on Drawings and Specifications including the salient characteristics cited; then list the clarifications requested. If the features that the Architect is requesting are no longer available as standard features from the listed product, that would be information that should be included in the RFI. After all, the information listed is based on what was available when the Documents were issued. If the product change had already been made, the basis of design was changed whether or not the Architect was aware of this. It’s almost impossible for anyone to keep track of the literally thousands of products listed in the Project Manual though we all strive to do so.

It’s painful to learn that this sort of thing has happened. I wish you luck in resolving this in an equitable and amicable manner. Life’s too short for the other alternatives.