Product reps "going around" the architect/specifier

Archive of Older Topics Archive - Specifications Discussions
1

I just received a copy of a letter today from our Owner. It seems that the Owner (a school district) has been contacted by a product representative who wants to get his products back into our school projects. Their products have been installed in our schools projects before, but we have determined that they are inferior to their competitors products. So we pulled them out of our specifications. (BTW, we do have four other companies in the specs that we deem as acceptable “equals”.)

First of all, this is REALLY bad form for the product rep to go around the Architect/Specifier and try to persuade the Owner to have us specify their products.

Second of all, we (the Architects) are the judge of what products are appropriate for what project. (Aren’t we hired for our professional judgement?) Since we are held responsible for the products that we specify, we are concerned about future liability.

Unfortunately, I believe that the Owner will cave into the product rep because the Owner does not want to “make waves”.

What should I do?

BTW, I believe that this company pulled the same crap on me when I was working at another firm and for another client.

2

There’s nothing you can do to stop the rep from making direct contact with the owner, though you can make it known to her or him that you don’t like the end run. My response would be to detail in writing the reasons that you have chosen the four manufacturer’s you did, and advise the owner that you were planning to list only those four unless you are specifically directed by them, in writing, to go against your professional recommendations. That should scare them a bit. Otherwise, there does come a point in many projects where we are unable to protect our owner/clients from their own mistakes. We can be on record - that’s it. They are the ones that live with the consequences of such decisions.

3

David,

I agree with John.

Ultimately, the rep has the right to talk to anyone they want - the owner, the contractor, whoever.

The Owner does not have to accept your professional expertise - but it would be unwise to do otherwise.

You can lead a horse to water…

William

4

I would agree with John and William viewpoints.

I have something else to say about product representative. Most that I meet are ok, some exceptional, and of course some who are terrible. However the worst ones fall into two catagories, 1. Don’t know their stuff and failure to admit it, and 2. Those who are so pushy that they are a detriment to the company they represent.

Marvin Chew

5

David,

I don’t blame the man. He has a mortgage to pay and kids to send to college also. It’s his right to get around the specifier and there’s nothing we can do about it other than barring his products from our future specs if we feel that they’re unaccetable.

6

Aren’t there some other aspects to this, that we MIGHT be interested in, or need to understand? Does the rep know the clinet better than the professional? Does the rep even know that a professional is on the project? Have we had a “disagreement” with them earlier? Have we been less than receptive to them? Is this tactic his habit or MO? Was there a true techncial purpose why the product was not included?

7

Okay so here are the details to my post.

It has recently come to our attention through various independent acoustical consultants and acousticians that top seals perform better than top sweeps for folding panel partitions.

With this information, we now specify, in Section 10650 - Folding Panel Partitions, mechanical top seals and do not allow top sweeps. We also know from experience that top sweeps will sag and thus fail acoustical tests. Top sweeps are cheaper than mechanical seals. Top sweeps can also be easily replaced. Nobody replaces them though.

By specifying mechanical top seals we have eliminated 1 of the 4 manufacturer’s listed in our specification. Well when the “top sweep only” manufacturer’s rep found out that he was eliminated from our specifications, he immediately went to the school district. He wrote a letter to the school district stating that my firm does not know what they are talking about and that mechanical tops seals are an “expensive gimmick” (his actual words). He also explained that his products are installed all over the place in the Northwest. In his letter he also bashed the competition (and another architetural firm) with information that is just not true. (I checked with the competition.)

The school district wants to leave them in the specification because they are afraid of a bid protest and just want this rep to go away.

So the competition says if we allow top sweeps that they won’t be able to compete price wise.

BTW, when we met with the rep he showed us pictures of some installations. The installations looked terrible. I thought that they were pictures of product failures not successful installations.

My fear is that we have opened the flood gates and that they owner will get deluged with “me too!” requests.

I really don’t know what to do.

8

David,

At the ‘end of the day’ all you can do is express your professional opinion based on your professional experience. You can give the reasons for your requirements, and tell the owner that rather than making the rep go away, they virtually guarantee they will be seeing only him forever in the future.

If an owner for whatever reason does not want to listen to your recommendations, there is nothing you can do about it.

About the most severe thing you could do if you really don’t want to see sweeps is tell the owner that you want to go on record as strongly advising against it and that you don’t stand behind the system at all. Stronger would be that you tell them you are writting a letter where you indicate he is proceeding at his own risk.

Neither of those will make the Owner happy, and I don’t know if this is that serious a situation.

Frankly, you have listed enough reasons that I would exclude a product even if it was identical. Bad installation, harrassing, etc. I just would not put them in based on that.

William

9

A sales professional would never go around an account to get a one time sale and sacrifice future sales and their reputation. This must be a short sighted sales person. I think you have done all you can to protect your project and client. Ultimately the owner is the customer and the sales person is free to make a sale. Even though the ROI cannot be good long term.

10

Some additional comments from a very similar experience (in no particular order):

Is the job currently out to bid? If so, where’s the formal request for substitution? If one wasn’t submitted, then the product can’t be added to the bidding documents by Addendum. Substitutions normally can only be submitted by the prime bidders, not subs or suppliers. Have the prime bidders complained that products from any of the three remaining manufacturers are not available?

Is a credit being offered the Owner for accepting the inferior product?

What sort of relationship does this manufacturer have with the General Contractor? How do you even know the GC wants to use this product on the project? Suppose the contractor has had some prior bad experience? Just because the manufacturer wants his product on the job doesn’t mean the rest of the construction team does. And after all, the contractor is the one with the contract with the Owner, and is ultimately responsible for the project’s compliance.

Pressure from an Owner is no reason to include an inferior product in the specs. If its in there, its just as if you had intentionally designed it to be in there initially. Therefore, there’s no reduction in liability, regardless of the Owner’s insistence.

It is a known legal precedent that in the event of any potential litigation that ensues as a result of a design problem or product failure, the courts (and jury of untrained lay people) will look upon the ARCHITECT as the expert, not the Owner or contractor (even though they may have been the driving force behind any such alteration of the design, and regardless of how much pressure they may have exerted on the architect to accept it). The architect is ultimately responsible for designing the project, and with products, materials, and systems that will not fail. Period.

There might be an opportunity to present to the Owner that the rep’s whining is nothing more than a sour grapes case. There’s no shortage of compliant products, he’s just being a crybaby because his company doesn’t make one. And his unethical practices are very unprofessional and certainly no reason to cave.

Give the other three manufacturer’s their day in court; it’s only fair they should get equal time to plead a similar case against mfr #4’s products and claims. Let’s see if they concurr that their sweeps are nothing more than an “expensive gimmick!”

Ahhh - To be a fly on the wall at that meeting . . .

Have fun!