Okay, here is a question… is there a fundamental difference between not allowing a product and not allowing an action? “No smoking” (an action) seems different to me than “No Acme Locksets”.
It makes sense in many cases to prohibit an activity - no explosives in demolition - because as Sheldon says, you are specifying one thing, even in the negative, instead of a positive listing of a lot of things that are permitted. With products, you positively list what is permitted, because the list of things you want is shorter than what you don’t want.
Maybe the core issue is not negative vs. positive, but concise finite lists vs. long potentially infitine ones?
And re: Wayne’s spitoon comment, I am sure there is a LEED credit somewhere for recycled tobacco spittle.
No substitutions? Huh? What? Have I wandered into the wrong forum?
So what do I do about my University Owner that has the same brand cylinders for all locks on every building on campus and an entire locksmith shop devoted to maintaining those locks? They only want Medeco cylinders…no subsitutions.
The contractor is always free to propose anything he wants to propose. The owner is the only one that can give him an emphatic no. In the case of the locks, the owner has a very good reason that he may be willing to pay more. You can say no, but you can’t prevent the contractor for proposing a substitution to the owner.
David,
That’s technically a ‘limited source waiver’, and hasn’t really got anything to do with ‘substitution’. The contractor is to comply with the waiver the client has produced. The client has to produce this (in Washington state) in concert with statutory requirements. You’ll know if you have one because it’s a pain in the @$$.
There is a difference between mandating materials and quality to go into the construction and communicating the Owner’s wishes for a properly controlled and behaved project site. Things versus actions. There are some actions taken by some contractors that can get an Owner in trouble. Oogling women, loud music in residential areas, fire hazards caused by burning debris in 55 gal containers, etc. The contractor must be told that these behaviors are unacceptable. Whether that occurs in Division 1, the Supplementary Conditions or the Contract is certainly debatable, but the bottom line is the Contractor must be told “NO”.
However, with regard to “things”, materials and products to be used in the building, limiting the negatives is absolutely necessary. As stated before, where do you stop? The documents say what is acceptable, the rest is construction administration. The “Not alloweds” should be kept to a minimum and usually for situations that occurred and caused problems. But, as stated before, these have to be reviewed periodically.
Another reason for limiting the use of negatives for “things”, is that if the use of negatives is extensive, the lack of a negative could imply that “anything goes”.
I don’t recall hearing of a “limited source waiver” (the laws here in Texas may not be as explicit as in Washington, Massachusetts, etc.), but we do on occasion include the words “No Substitutions” in specs. Hardware consultants often put it in all caps, especially when it’s an owner-mandated requirement, such as a proprietary cylinder core.
Come to think of it, most of the “No Substitutions” instances I can think of have been owner-driven, including such things as brand-name coating systems, a specific brick (to match existing), etc.
Might it be instructive to come up with a list of frequently-proscribed activities and products? We’ve already got a good start…
Smoking, tobacco, alcohol & illegal drug use
Loud music and boom boxes
Burning trash and debris on site
Blasting/explosives
Storage, display and sale of salvaged items on site
Copying contract drawings for use as shop drawings
Products containing asbestos, lead, mercury, dioxin, biphenyls, etc.
Fly ash
Masonry cement
Galvanized flashing/fasteners
Knock-down frames
Vinyl base
Organic adhesives
For those who attended the CSI show and heard Gerald Katz give the presentation on “How the Courts Interpret Specifications”(he’ll be giving a similar presentation at the Construction Specifications Academy), you’ll recall that one of the key points was “specifics control general.”
The material/product requirements, which establish the salient characteristics, would be considered the “general.” Whereas, any exclusions (i.e. “not approved,” “not acceptable,” “not permitted,” etc.) would be considered the “specific.” From what I’m reading, most of these “not permitted” items probably wouldn’t have met the requirements of the specifications in the first place, supporting Sheldon’s position.
As I see it, the specific should be an extension of the general. For example, the specifics, or “not permitted” items, should only be listed if they do meet the requirements but are not acceptable for reasons of poor past performance, high maintenance experience, etc.
If the product/material doesn’t meet the specifications, reject it…period.