The Skinny: Project Manual for a high rise condo, my firm did Division 01 with standard, A201-based MasterSpeak language. Section 01600 requires Architect’s approval only for substitution requests. Owner’s financial institution hires third party constructibility reviewer who recommends that Architect and Owner both be named as parties that must approve substitution requests.
Issue: I am uneasy about this for what I hope are obvious reasons.
Question: Pros and Cons from the group in allowing this change to be made?
anon
Substitutions during construction should be approved by the Owner, and issued to the contractor via a change order. Read A201 3.4.2.
If the architect is uncomfortable about accepting a substitution then the architect should tell the owner IN WRITTING.
The owner can then decide if they want to accept the substitution contrary to the architect’s WRITTEN objections.
What Mr. Axt notes is correct, and is the essence of the “policing” of the Owner-Contractor contract, required of the Architect.
The Owner could be duped into accepting a poor substitute, for a very bad or tenuous reason; so the Architect must speak up.
Mr. Geren is correct.
A201 3.4.2 says; “The Contractor may make substitutions only with the consent of the Owner, after evaluation by the Architect”.
The cited A201 clause was inserted in the 1997 edition. My research with those on the committee at the time indicated it was insert so that the owner become part of subsitution approval process and relieve Architect of some of the liability. The problem is that the Architect still signs a change order indicating recommendation of the substitution creating a problem if the Architect doesn’t recommend the substitution but the owner still wants to accept it.
One solution to this is supplementary condition change to the above A201 clause to delete the requirement making it a mandatory change order but keeping the Architect recommends and the Owner approves. Then use a modifed subsitution request form that has the Architect making a recommendation about the subsitution and the owner making the final decision on the same form. Now the Architect’s recommendation and owner’s decision are on the same form and the Architect doesn’t have to write a negative letter to the owner if there is disagrement about a subsitution request.
Obviously a change order would still be necessary if there is change in the contract sum or time, but the Architect is already on the written record regarding the substitution.
AIA A511 offers the following replacement language to A201 paragraph 3.4.2:
After the Contract has been executed, the Owner and Architect will consider a formal request for the substitution of products in place of those specified only under the conditions set forth in the General Requirements (Division 1 of the Specifications).
In the AIA A 201 article on the “1-year correction period”, the Owner has the right to accept Work that does not conform to the requirements of the Contract Documents. These provisions effectively deal with unauthorized substitutions. The Architect’s responsibility is to point out nonconforming Work, but does not have the absolute authority to compel the Contractor to correct it. It is the Owner’s money, and if the Owner can be convinced that the nonconforming Work will meet his needs, then the Owner has the right to accept it. Note that Work that is nonconforming is not necessarily defective.
My firm finds nonconforming work on almost every project, as I am sure others do. There are some Contractors out there who love to play Architect and can convince the Owner that their impression is an improvement over the real thing. It is somewhat of a mystery to me why the Contractor would want to have design responsibility since (1) he warrants that the Work will conform to the Drawings and Specifications, and (2) his insurance does not protect him from design failures due to to his design errors and omissions. On some of our projects, we even kinda like the Contractor’s taking some of the liability out of our hands.
The process for reviewing and accepting substitutions proposed by the Contractor is a vehicle for placing design responsibility back on the Architect which, in my humble opinion, is where it belongs. Substitutions are a means of proposing a change in the Work. Standard provisions in most CDs require that the Contractor pay for review and any changes to CDs that may be required; however, I have rarely seen this enforced.
If the substitution constitutes a minor change in the Work which does not affect cost or schedule, it could, theoretically, be effected by the Architect’s acceptance of the Substitution and an ASI (Architect’s Supplemental Instruction). In this case, there may be no need to involve the Owner. Where the substitution does affect time or money, the change must be effected not only by accepting the Substitution, but also by implementing a Change Order. This process requires Owner approval. I would suggest that the Architect should get Owner concurrence for all substitutions even when they do not require issuing a Change Order.
My thoughts are based on a Substitution Request received during construction. Substitutions received during bidding are different and do not require Owner involvement.
Does the third party constructibility reviewer take on any additional liability for recommending that the owner and architect accept a substitution?
Peter: What A201 states (and what Shedrick didn’t include in his quote) is “…and in accordance with a Change Order.” So, if AIA A201 is used (and not modified, as Bob Johnson suggests), then a Change Order is required for substitutions whether or not they affect cost or schedule.
Bob: Rather than going through the modification of the A201 and creating a special form, couldn’t a letter, attached to the Change Order package, indicate the architect’s opposition?
There is no statement or certification on the G701 (Change Order) that states the architect’s signature is a indication of his recommendation of the change. Rather, it indicates that it is a valid Change Order (assuming the other parties have signed it). For example, on a regular Change Order that increases the cost, the architect may object to the amount, but the owner accepts it, anyway. So, how does the architect document his objection?..by letter.
Mr. geren is correct again.
Thank you for correcting my error. I intention was to quote complete text but I failed to do so.
The change order element is most important in this discussion due to the fact that the architect signs it stating THEIR (owner, architect and contractor) AGREEMENT to the change. See A201 7.2.1. (avoiding the qote this time!)
We want the Owner to be involved in accepting substitutions since it will help control our liability. In addition we should not loose sight of the fact that it is the Owners money and we are acting as his agents in administering the contract.
I recommend the use of the CSI form for substitutions. It requires the Contractor to take responsibility for the consequences of his proposed substitutions thus further helping to control both our and the owners liability. This form also insures that we will be paid for our effort in reviewing the substitutions.
The reason for eliminating the requirement for a change order is so the A/E is not signing a recommendation for a change that the A/E doesn’t recommend which then has to be explained in an additional negative after the fact letter which in my experience owners don’t like to receive. The modified substitution form eliminates the need for such letters to the owner and gives the owner the A/E’s recommendation in writing before the owner’s makes the final decision as it should be.
It also makes it simplier - the form I have used is based on the CSI form with all the contractor representations but changes the A/E’s action to a recommendation and adds a location for the owner to sign off with their final decision - all accomlished on one simple form - contractor’s request, A/E’s recommendation, and owner’s decision - documents the appropriate actions of requesting, recommending, and making final decision by each party - neat and simple - no additional letters - no change orders to process if there is no change in contract sum or time.
Like Bob, I use a modified version of the CSI form, with a place for the Owner to sign off (it’s interesting that neither CSI form mentions the “Owner”).
A201 requires that the Owner and Architect approve substitution requests in accordance with a Change Order. This is not in conflict with a substitution request form absent the Owner’s signature because Change Orders must be signed by the Owner. If a substitution request makes it as far as a Change Order, Architect has approved (for sake of this argument) and Owner signs the CO, satisfying the requirements in A201.
If it doesn’t make it as far as a Change Order then it isn’t really a substitution request as described in my Div 01 sections, but either a Comparable Product (I include “or approved” stuff in this category) or a Minor Change in the Work, which is addressed via ASI.
Since Change Orders require some modification to the scope of Work, where there is none in a substitution request, there is no conflict with A201 in approving or rejecting the request without Owner’s approval…
anon
Anon 7-14-05 posting:
The 1997 edition of A201, whick I think everone agrees represents recommended standard practice, says the Contractor may make substitutions only with the CONSENT (not approval) of the Owner, after EVALUATION (not approval) by the Architect, see A201 3.4.2.
A change order DOES NOT REQUIRE APPROVAL by anyone. According to A201 1997, A change order is a written instrument stating Owner, Architect & Contractor agreement to the change, see A201 7.2.1.
If one desires to require Architect approval one can, however, it is NOT recommended standard practice according to A201.
I am sure the Owner, Contractor and financial institutions involved in the project are more than agreeable to the Architect accepting more liability than he is obligated to accept. Such expansion of Architect liability may not be covered by the Architect’s liability insurance.
SPecText section 01600 does NOT require Architect approval of a substitution. I do not have access to current MasterSpec 01600 section so I cannot factually say what it says.
If you are the same Anon that first posted this thread, you appear to be defending your documents instead of getting the facts straight.
If you are not the same Anon that first posted this thread, the facts, with confirmation location referenced, have been stated repeatedly in this thread. I suggest you read A201 before making false statements as in the 7-14-05 Anon posting. The posting itself explains why you conceal your identity behind “anonymous” postings.
Maybe I did a poor job presenting my position. At the risk of more abuse in wanting to remain anonymous, I’ll give it another try, and hopefully Shepdick will give me a little more professional courtesy here.
I erred in using the word approved in my 7-14 post, but I do not believe that this invalidates my argument. The Architect, using a substitution request form signed by the Contractor, evaluates the request - taking whatever action the form requires by checking whatever boxes are available. The CSI form for substitution requests after bedding/negotiation does not require a signature by the Owner, so CSI seems to recognize and support my position that at this juncture of the process, consent of the Owner is not required. The CSI form, under the A/Es Review and Action section, contains 4 responses to choose from: approved, approved as noted, rejected, and too late.
If the substitution request is approved (CSI form language) which necessitates a change in the contract, a Change Order will be required, and the Owner, by siging the Change Order, consents to the substitution request.
There is nothing in A201 that I read that requires consent of the Owner in rejecting a substitution request.
A511 offers the alternate language to A201 3.4.2 if it is intended that “substitutions should not necessarily require a Change Order.”
MasterSpec Section 01600 addresses this issue by describing what comparable products are and procedures for submitting a request to use a comparable product in lieu of what has been specified.
I hope that I have stated my position more clearly this time.
Anon/Unreg: I think the confusion (from my reading of your 7/14 post) stems from your 3rd paragraph stating that substitutions do not require the owner’s approval, whether rejected or accepted, since substitutions do not modify the contract’s scope of work.
If A201 3.4.2 is left intact, then a change order is required regardless whether scope (time or cost) is changed or not. However, you’re correct in that a change order is not necessary if the owner does not consent to the substitution. The use of the change order IAW A201 for substitutions is to document the owners “approval” of the substitution.
I also agree that comparable products from listed manufacturers in lieu of basis-of-design products, are not technically substitutions. But I require that they follow the same process to ensure compliance with specified requirements.
Unregistered Guest:
As stated by Rober Johnson, 3.4.2 was added to A201 in the 1997 edition. If the CSI form you reference is dated before 1997, I suspect that it is coordinated with 1987 A201, (which, from memory, DID require Architect “APPROVAL” of a substitution) not the 1997 edition making it inappropriate for use with 1997 A201 without modification.
Substitution request forms require no action of the Owner. This is the instrument used for an Architect’s evaluation of a substitution, period.
Upon approval by the Architect, if - and ONLY if -a change in sum or time is required, a Change Order must be prepared and Owner’s signature on the Change Order constitutes Owner’s consent to the substitution.
AIA A201 paragraph 3.4.2 does not require any of the following:
-Owner’s signature on substitution request form
-Owner’s review of substitution request form
-Owner’s approval/consent to rejection by Architect
-A change order for anything other than a change in the work brought about by a substitution.
If there is no change in the work, there is no change order required and 3.4.2 does not supersede the definition of Change Order in A201 - so I respectfully disagree with your statement, Ronald, that if A201 3.4.2 is left intact a CO is required even if there is no change in the Work. You can’t have it both ways - see the definition 7.2.1 requiring “…all of the following: .1 change in the Work…”
The CSI form I have been reading from is straight out of the new Project Resource Manual, dated June 2004. I’m betting that it is fully coordinated with the 1997 A201.
anon