Since my discussion really does not belong here, I wish Colin would start a “Construction Administration” thread for those of us involved in CA.
The contractor is claiming the specified product is a long lead time item and that we should accept his inferior subsititution because it is readily available. What are some defenses against this type of strategy?
It’s generally my understanding that this is not a legitimate excuse for accepting a substitution.
I also don’t always take the contractor’s word for it, but contact the manufacturer to verify it.
There are 2 time periods when this is an item for discussion.
1 - if it is before the owner/contractor agreement is signed, then long lead items are, like many other long lead items, simply a matter of construction scheduling and are taken into account in that manner.
2 - if it is after the owner/contractor agreement is signed, then its NOT a valid topic at all. He should have been aware of it at the time he priced the job and signed the contract…because there are many long lead items in any project, and he should have taken this into account.
William
I agree with Richard and William.
Try the manufacturer and ask for their local/suppliers. I use to keep a list of how many times I got this request and how many times I could easily find the product with a little effort. I will never forget the time I found the product at a Home Depot two blocks from the site. I have to admit that these requests have become entertainment (or revenge) for me because with the internet it is quite easy to locate almost anything. I love being able to give the info to the contractor and say go buy it here. We are not accepting anything else.
If it is the case that it is a long lead and the contractor did not secure in time and it will delay the project significantly. I really bring the point to the Owner that the contractor has to find something very close to what is specified. This usually takes several rounds of submittals. I have backcharged the contractor and have gotten paid for my firm’s time. I had one Owner who would not pay the contractor for that portion of the work until he paid me.
Good Luck
Thanks Colin!!!
I seem to get this excuse all the time. Since the contractor can’t get the specified item on time, he sometimes expects me to find a subsititute.
I just recently went through this with US10B (oil rubbed bronze) cabinet hardware hinges. The contractor claimed that US10B hinges would be a 16 week item and wanted us to accept ugly US10A (antique bronze). After wild goose chasing and finding other manufacturers that made brown/black powder coated hinges that were acceptable, the architect called the orginal hinge manufacture. No problem with 10B finish and only a 3 week lead time!
I am livid about being lied to and run around. From now on my policy will be that scheduling is not my problem. If the contractor wants me to chase down another acceptable product then he will have to pay me. I am not doing his work for him!
I totally agree with William and Julie. I have had situations where the contractor delayed ordering and item until the last minute. I always try to verify the lead time with the manufacturer.
I had a situation where the contractor failed to order electrically operated exit devices on time and then said it was 12-14 weeks to get the specified item. A call to my local hardware rep revealed that the actual lead time was more like 3-4 weeks, but thair call to a wholesale hardware distributor produced the specified item in a week!
I think your question belongs here. I know I do a better job with specifications the more I am aware of the issues that can come up during CA.
It seems to me that the contractors argument is no different than any other contractor inspired claim to save money by replacing specified products with inferior ones. These inferior products generally have a smaller initial cost, but end up costing the Owner a lot more over the life of the building. So, the owner should not be too quick to accept the argument that the inferior product will save money.
The contractor is responsible for establishing his own construction schedule, which includes making sure that all items are ordered early enough to ensure that they do not hold up the construction schedule. If the contractor failed to perform this crucial part of his job, it is hardly reasonable for him to request that the owner suffer a loss in product quality as a result of it.
If the timing of the issuing of the contract documents has made it impossible for the contractor to schedule the ordering of the long lead items without holding up the construction schedule, he may have a better argument. In that case, you simply have to let the owner know what the options are. The owner will either have to spend more money on a superior product while also absorbing the costs of having the construction schedule held up, or the owner will have to spend more money during the life of the building as a result of having allowed an inferior product to be installed. Id present these options to the owner and let the owner decide how to spend the money.
If, however, the inferior product will clearly compromise the an important aesthetic feature of the building or if the product has a reasonably high potential of leading to the occurrence of water damage or other damage to the building, then you should definitely dig in your heels and insist that the inferior product be rejected. Architects have an obligation, perhaps above all else, to look out for the interests of the owner by designing the best aesthetic and functional qualities of the building that the budget will allow. Architects should always strongly oppose any product that compromises these things.
On the issue of first cost, I worked for a sole proprietor architectural firm, whose father was old world eastern European–a masonry contractor. Mr. Fritz used to say “We are too poor to buy cheap.”
I found the following quote in the shop of a custom architectural metal fabricator. The quote is by John Ruskin.
“It’s unwise to pay to much but it is worse to pay to little. When your pay to much you loose a little money–that is all. When you pay to little, you sometimes lose everything, because the thing you bought was incapable of doing the thing is was bought to do. The common law of business balance prohibits paying a little and getting a lot – it can’t be done. If you deal with the lowest bid it is well to add something for the risk you run. And if you do that, you will have enough to pay for something better.”
David, this does not answer your problem but it may give you some ammunition in the future to debate your postion with your client.
I use the CSI Form 13.1A for Substitution Requests in conjunction with my Division 01 section on product substitution procedures which explains in clear and concise terms the rules for a substitution request after the award of contract. I also have a supplemtary condition for this subject. I have been paid in the past for reinventing the wheel.
Wayne
Interesting question, and of course, there is no one answer, because there is not just one type of client or project.
William once again provided a completely accurate, though text book response. Last time I got hit with a text book, it hurt!
Looking at this with the my fuzzy grainy real world filter, the process I advocate is this:
Apply the squeal factor. Say no, and reject the substitution. If the contractor really squeals, perhaps their claim is legitmate. 50% of my issues go away this way.
Analize your client. Does your client really want a propietary spec? Are they favorable to substitutions for cost or time? If you reject it, regardless if your actions are warrented or not, will you be considered a road block to progress?
Be more proactive. After the big construction kickoff meeting where you discuss proceedures and so forth, have another meeting with contractor, client, and yourself and possibly the MEP engineers to review probably long lead and/or specialty materials and items. Be up front, show the contractor what items you are concerned with, and LISTEN to what items they are concerned about. It could surprise you what they come to you with! I recently had to redesign a metal stud building because a certain size/gauge of stud was not as available. We got an add service fee, and the Owner got a minor credit, and the contractor’s schedule was enabled. He evenutally got a performance bonus at the end of the job and everybody was happy. But we did it as a team.
Understand the buyout process and progress. Many substitutions come after bid because the GC re-shops the bids and goes with a cheaper provider. And that almost always causes problems like illegitmate substitutions. This gets sticky on private work. Follow your clients lead if you value repeat business. However, never jeapordize your own liablity or risk by approving something you are opposed to. Any substitution you approve as the architect is as if you origionally specified it. That phrase haunts me daily. I FREQUENTLY write letters to my clients telling them why I will not approve something, and give THEM the opportunity to accept it without my stamp on it. Many sophisticated GC’s won’t install something without the architect’s submittal stamp, and when I refuse to stamp it, even with the Owner’s approval, the GC’s won’t go with it, and somehow find my specified product in time.
Remember that you do not share the material benefit of these projects, so there is no reason to share the material risks either!
Regards,
Nathan Woods CCCA
I am interested in the ramifications of Nathan’s strategy of giving the Client the opportunity of accepting substitutions without his stamp on it.
In many projects the design professional is required by the building department to approve all changes to the Construction Documents thus this strategy is tantamount to telling the Client he cannot do it.
I am concerned about both the legal liability as well as the business implications of this approach.
If the substitution does not violate any codes, does not have a life safety concern, and we have fully disclosed our concerns to the Client can we legally say no. If the contractor screws up and you are faced with designing a fix that is OK but definitely not as good as tearing it down and doing it right, the courts have often allowed the Contractor extra monies if he is required to tear it down and re do it. While we are the gate keeper on many issues I do not believe that we have an unlimited right to refuse our consent to changes. We are agents of our Client and thus are bound provide our advice and to help him fulfill his needs. Admittedly this at times conflicts with our obligation to protect the public and our need to control our liability. The right choice is not always simple.
Secondly it can have a negative impact on the Client relationship if you tell the Client NO and it costs him extra money. This in turn may make the Client more likely to make a claim against your firm or to hire somebody else for the next project.
The practice of Engineering and Architecture is a balancing act. One technique for reducing the risk is to inform your client of the risks that they will be accepting and those you are not willing to accept. There will still be times when we must say NO but we need be careful when we do so.
I understand your question Mark.
My answer to that question is that the Owner always has the right to accept work that the architect has rejected. I feel that the same holds true for submittal items…although, I’ve not had to defend that particular belief in court or arbitration yet, so perhaps I am mistaken on this viewpoint. It is an interesting question.
we used to get this “excuse” in interiors work all the time. I put some language in my specs saying that if a substitution was proposed due to time constraints, the contractor had to provide a copy of the original order form showing that he ordered it on time, and the time problem was not of his making. Otherwise – it got shipped by air at his expense. We only had to enforce that once and the word got out.
if the Owner does accept "non-conforming " work, there better be a good price reduction…
I really like Nathan’s list above. I feel that architects too often use proprietary specifications where they really don’t give a rip. On clear float glass, there are only about 5 domestic manufacturers anyway; why would you prefer PPG’s clear float over Visteon’s? Would you specify a manufacturer for sand? For commodity items, does anyone really care?
I try to look at the items we really want to control and narrow the specification to a few manufacturers we know provide good products.
I have come to feel that the installer is much more critical than the manufacturer anyway. I would really rather have mediocre products installed by good mechanics than outstanding products installed by mediocre mechanics, and I feel this way about waterproofing, concrete, paint, cabinet work, roofing; maybe even items like HM doors or door hardware. Wouldn’t you really rather have one of 2 or 3 roofers in your areas with their best crew installing whatever they think is appropriate than spending a lot of time specifying the top of the line roofing systems from GAF or JM or Firestone or whoever and having it poorly installed?
One of my frustrations is that we don’t really address this issue in a lot of our specifications; we don’t even really frame the discussion in those terms.
But, I digress…
Substitutions in all their forms are a necessary evil even under optimal circumstances. I have seen or heard of most of the issues listed above, and am just as frustrated as many of you are when you make a call and find out there is a car load of material on a siding 50 miles away. However, in the contractor’s/installer’s defense, how is he supposed to know if he/she is getting the same story from 3 local distributors?
Manufacturers go out of business, change names, or get bought out with sometimes distressing frequency (re: Best Lock; Best Access Systems; Best Access Systems, a division of Stanley Security Solutions who used to be Stanley Hardware). It doesn’t have to be an old office master or even a section pulled from an old job for the CA people to find that a manufacturer or a product that just isn’t available any more.
I do like Anne’s suggesting about requiring a copy of the original order; however, even if the contractor has not been doing his job, are you really going to require him to air freight 600 stone countertops from an Italian fabricator? Maybe so… maybe it just isn’t practical. Maybe you accept a substitution for a product that is available and tell the contractor that you will recommend to the Owner that no payment be made on that material.
We often find, especially on smaller projects, that the Owner is willing to accept non-conforming work without our concurrence. I would argue that the contractor had better be showing the Owner the money, but often it is enough that the contractor play a schedule card and indicate that there is no price increase. Where this is done directly between the Owner and the contractor without our knowledge, it is my view that the contractor has assigned design liability. Smaller contractors will much too often take on liability they really shouldn’t. When something goes wrong, the A/E is often in the best position if they have documentation that the work was non-conforming and that notice was given to the owner. If the contractor realizes that they will “own” not only the construction, but the design as well, they will sometimes decide that the original design could be made available after all.