Proof of Compliance

Archive of Older Topics Archive - Product Discussions #2
1

Anyone ever run into situations where you suspect, or are being told, that what you specified, and what was approved at submittal time, was not what was actually getting installed?

I listen to product reps very carefully when they talk about their competitors because I can learn a lot about them - who they are, what kind of salesperson they are, are they bashing, or are they really trying to help? When I hear these things from one person, I feel obligated to listen, become slightly annoyed, but I become very suspicious. When I hear the same thing from several sources, I become somewhat alarmed.

Often materials are delivered to the job site when our CA people are not there, and it seems that for whatever reason, the delivery cartons, cardboard containers, or product wrappers disappear before our CA people can see them. Some products do not have grade stamps, product specs, or compliance statements on the material itself. We rely on the GC to inspect and accept deliveries, and to reject non-compliant items at that time. The Architect can not be there at all times of the day and night during construction.

Im not trying to imply any hanky-panky, but, I play cards a couple times a month. One of the guys is a really good bluffer. When someone calls him on it, he sarcastically replies, “Theres no cheating in poker…” (grin).

We all know we live in an honest society, and I’m as paranoid as the next guy, but seriously, who has the burden of proof? Where does the onus lie for proving compliance with the contract documents? I suppose I could take a piece of the material and have it tested, but who should pay for that, and should it be done confidentially? I cant be making accusations or judgments based on hearsay, because Id hate it if I were wrong, but what if these other reps were being honest?

I’m thinking about writing into the Quality Assurance statement in Part I something to the effect of “Prior to installation, provide proof of specification compliance to Architect at time of delivery”. Any comments?

2

It is naive to expect that what is specified and approved is what is installed. Far from it.

An owner has to decide at what point to force compliance. This can be extreme.

I was PA on a project (two blocks from my current office); 5 story office building on three garage levels; the contractor submitted window systems; which after much wrangling we approved - on a Thursday. The next Tuesday most of two floors were installed - a completely different system by a completely different manufacturer - face set glazing, not center set, ad nauseum. How they submitted one and installed the other without shop drawings is beyond me.

This was like the ‘last straw’; the developer could either:

  1. accept that he manipulated the contractor (on price) before the project started;
  2. admit there was a construction/funding problem and risk losing his tenant, who made the whole thing happen;
  3. force the contractor to perform; in which case the contractor likely would have claimed interference in performance of the contract. We knew the contractor was at least 30% underfunded on the project. BUT, the contractor had not negotiated for quality changes in advance.

There were many extraneous factors that make this an extreme case. We knew of these performance issues, and worked with the owner and owner’s rep. I don’t think less of either person/organization; they stuck it out, but I walked away from that job before it was finished. Today it is successful, leased, and a viable place to have a nice office. But getting there was very tough.

We architects and specifiers are almost always operating with the implicit will of the owner. We risk credibility when/if we do not demonstrate that fact.

3

I know of at least one fireproofing subcontractor in Ohio who will install mineral fiber instead of the cementitious product specified and approved in his submittals. When caught, he says it is all the same and why should anyone care.

I also know a building inspector who will shut down a project for unathorized changes from the approved documents.

For less obvious situations, you almost need to be psychic to tell if you are getting what you paid for. What good is a promise from a crook? It isn’t difficult for an unscupulous contractor to change packaging or find another way to cut corners.

Hopefull, once the guy gets burned for cheating and hurts the GC at the same time, he won’t remain in business very long.

Standard agreements give you the right to test to demonstrate contract compliance. The owner pays if things are as they should be and the contractor has consequences if they are not.

4

I’ve found that the problems that result in action are the ones where the owner experiences a sense of unfairness / betrayal / ‘being taken advantage of’ - all of these are negative things it’s best not to focus on.

Many owners are not savvy and would rather ‘have a life’ than get embroiled in such problems. And some could be accurately described as delusional when it comes to problems. I’m stating the obvious that owners have a different perspective. I’m certain that certain firms’ success is highly dependent on adopting that ‘owner’s perspective’ in their business practices.

If you could look the other way - when would you?

5

I believe that AIA A201 gives the Architect authority to have the Contractor uncover portions of the Work that are suspect. If the Work is found to be nonconforming then the Contractor must pay to correct it. If the Work is found to be conforming then the Owner must pay the Contractor to cover up the work (i.e. patch the wall).

6

I don’t want to name anyone, so for obvious reasons I’m trying to be cryptic.

I’m not so naive, though, really. I understand A201 Article 12 addresses the obligations and options of uncovering, correction or acceptance of non-conforming work.

And, yes, we are always putting our Owners interests at the forefront of everything we do. That is why I brought up the topic. Im trying to protect our clients interests - and ours and yours.

Let me clarify. I’ve been told independently by two competing manufacturers rep’s that a third competing manufacturer may not be producing products which not only do not meet project specs, but may not meet the spec’s they state in their own literature. If I am obligated by conscience, or by law, to address this issue with either the Owner, contractor, or to take matters in my own hands, Id appreciate some advice.

By writing something into the specification about providing proof of compliance at delivery, Im asking for a little bit more honesty. I guess Mr. Howard is right, its not difficult for the contractor to fake packaging, but what else can we do? If Im wrong about trying to do that, or wrong about any chance of forcing compliance, I apologize, but naively I tend to think we as Architects/Specifiers have more power in our documents, and should not roll over and let the unscrupulous get away with some of the things they try to get away with. Certainly not look the other way.

7

You’re in a tough place. You can’t go to the owner and say ‘guy #3 has an inferior product’, because you don’t know that’s true. You could report the facts and say ‘guys #1 and 2 are complaining that guy #3 is misrepresenting the product(s) you are buying’. You don’t have any facts.

We get this regularly with manufacturers on the US side of the border bellyaching about manufacturers in Canada (who are regularly taking their business). For the most part, we see innovation and good products coming out of Canada. Our owners are okay with that. We don’t like the innovative ‘assemblies’ specifically the Canadian contractors bringing their EIFS nightmares down here, but that has kept some of us employed, so I should shut up.

The two complaining reps have some work to do. They need to demonstrate what guy #3 is doing is contraindicated. There cannot be shades of gray.

And if the PA has a good rapport with the contractor’s superintendent, it’d be a good time to ask what the facts were with respect to this ‘buy out’ that clearly went sideways. Contractors are capable of ‘buying out’ their subcontracts without causing all these ‘hard feelings’.

8

Just addressing the issue of adding something to the spec to address the general problem: “Certifications” have been used for many years for this purpose. The theory is that if the manufacturer/supplier must sign on the dotted line, he will think twice about lying in writing. I don’t have much experience with that but I’ve seen it in lots of specs, especially on public projects.

9

The only way out of this one is to get some “scientific” proof; i.e. hire an independent testing laboratory. It would be relatively simple to get a unit of uninstalled product, ship it off to the lab, order the testing that the manufacturer cites in their literature, and wait for the results. This gets at the heart of the accusation, “Their product’s performance doesn’t match their published technical data” and can be done independent of any project. Depending on exactly what the product is, the cost may be relatively minimal (a few hundred dollars) or fairly substantial (tens of thousands of dollars).

Invoking Article 12 would mean testing in place or taking a sample from the installation to an independent lab. This will test installed product (as opposed to manufactured product).

It this is a critical system with some history of field problems, it may be worth the firm’s undertaking this exercise.

If your firm’s experience with the product is satisfactory (product performance is satisfactory to your firm and your clients), the product may be “overspec’ed” to begin with.

10

To see if the reps are telling it like it is, have them pay for any testing that really does conform. If they tell it like it is, then they won’t have anything to worry about. If they balk, then question their accusations.

11

If you want to make sure that you get what you specify then:

Specify that all products are delivered to the job site in un-opened manufacturers packaging.

Specify that the Contractor must sign a statement at the end of the project, that the project was constructed in strict conformance to the Contract Documents.

Explain to your client your concerns and the long term consequences to him.

Recommend that the Owner hire either your firm or retain an inspector to be on site during all construction.

For California public schools and hospitals the owner is required to have a full time Inspector of Record on the job site during construction. While the system is not perfect it will address your concern.

It all comes down to money and how much the Owner is willing to pay to make sure that he got what he paid for. This approach could be a lot cheaper than lawyers and forensic testing. If the client does not want to spend the money, do what you can but you have taken the first step to protect yourself.