Let me preface this by saying that 99.5% of my work is private, with no Division 00 or bidding process, so i am not as familiar with public projects and the bidding substitution request process. My question to you all is: Do you ever see substitution requests during this phase that come directly from the manufacturer. I would assume they need to come from the GC, but wanted to make sure I am not unaware of something that might be acceptable in public work. As an architect/specifier, what would be your response to a manufacturer who submits a request for substitution during procurement directly to you?
during bidding I will receive from manuf. distributors, subs and the GC. after the bid period is done and the contract awarded…then only from the GC
When I know a project is going out for public bid, I always recommend to my clients to accept substitution requests only from GC bidders. You don’t want to spend time reviewing a substitution for a product that no bidding GC will ever potentially use.
What do the Instructions to Bidders state regarding substitution requests during bidding?
This is likely governed by regulations – or at least conventional practices – of the jurisdiction w/ authority over the procurement process.
Whether or not substitutions will be considered before bid opening or contract award, and the process for proposing them, would optimally be addressed in the instructions to bidders or similar procurement information (according to the Uniform Location of Subject Matter – a handy document).
On the public projects I work on, substitutions are allowed up to a certain number of days before the bid. This allows the design team time to evaluate the substitution. If accepted the manufacturer/product is published in the addenda. This makes other bidders aware of another product that they can use/bid.
I do a lot of work filling my specifications with quality, locally available, good track record products. That said I discourage acceptance of substitutions. My motto is “Guilty until proven innocent.” A partner at a firm I worked for used to rightfully say, “When in doubt, throw it out.”
Even though we allow ourselves time to review substitutions we rarely have the time to do a thorough review since we are busy with other tasks.
I have told product representatives that I will reject them for this project but spend some time with me and maybe I can get you into the next project. (Lose battle/win war). I am surprised how few reps took me up on the procedure. Usually they just fade away and are never heard from again.
Substitutions are permitted by the “bidder”. So, my original question is, do you ever see manufacturer’s circumventing the process and submitting the forms directly to the architect? If so, what would be your response to the manufacturer? I have my initial thoughts, but since i don’t deal w/ the public realm, i wanted some “real life” input
My question isn’t about whether substitutions should be accepted or not, or whether they are permitted (they are), but rather, whether it is acceptable for the manufacturer to submit them directly to the Architect.
It depends on the stated requirements. If they say “bidder” then I would definitely take the position of rejecting a request coming directly from a manufacturer.
That term could be vague unless it is clearly defined in the documents, but the intention is presumably that it refers to an entity submitting a bid to the contracting agency – not to sub-bidders who will bid to prime bidder(s).
Robin, what you are experiencing was something that I really struggled with for years for the public bid projects I worked on (like you, most of the stuff I worked on was private, but the firm I worked for did a fair amount of public bid work for the US Gov, universities, etc. - so I did have to deal with this).
Yes, manufacturers often circumvent the bidders and submit (publicly available) substitution request forms directly to the architect. I got tired of trying to justify to the poor architect reasons why a rejection was best course of action. And so I developed a couple of spec sections to address substitutions during bidding (which is separate and different from substitutions AFTER bidding - but very few Project Manuals or instructions to bidders address this at all!!!).
The spec sections I developed for this include:
SECTION 00 2600 - PROCUREMENT SUBSTITUTION PROCEDURES
SECTION 00 2601 PROCUREMENT SUBSTITUTION REQUEST FORM
Here’s the key paragraph in the Procedures section under 1.X DEFINITIONS:
A. Bidder: Entity or individual authorized to submit a bid in accordance with the Bidding Documents with the intention and ability to enter into an agreement with the Owner to perform the Work.
And every instruction in these sections is addressed to the Bidder, and with that, the Architect has what she needs to deny/reject substitution requests that come from any other party.
Even with this the project teams got lots of stuff directly from manufacturers, local reps, vendors, etc. But it was easy and simple for Architect to deny/reject with this language in place in the Project Manual.
Robin,
In our Instructions to Bidders, we include the following language:
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- Manufacturers, manufacturer’s representatives, dealers, distributors, suppliers, and subcontractors shall not direct or make requests to substitute equipment or materials. All requests shall originate from a Prime Bidder, and shall be submitted on the Substitution Request Form included at the end of Document 00 26 00.
. - Substitutions shall be submitted to the Architect only; no substitutions shall be submitted directly to any consultant, the Owner, or any of the Owners consultants.
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If the Instructions to Bidders is silent on the subject of who can submit, it very much opens the door for substitutions to originate from a myriad of sources. It likewise makes it difficult to reject substitutions that originate from other than the Prime Bidder, since there’s no violation or basis for rejection in the Instructions to Bidders.
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The other point is that if a manufacturer or supplier seeks and is granted approval of their substitution request, the GC may never know until it’s too late, since the manufacturer’s / supplier’s price only goes to the Subcontractor. The Sub ends up being the low bidder for that item of work, gets awarded the subcontract, only for the GC to discover that the proposed (and approved) substitution is not compatible with some other adjacent item of work that was awarded to someone else, (and of which the first sub was not made aware). The GC is ultimately responsible for the Work and to correct the problem, or worse - throws the architect under the bus for not reviewing for compatibility and therefore creating the confusion in the first place. SO not worth the hassle.
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Hope this helps.
The answer to your question can only be found in the Contract Documents for your Project. What is “typical” makes no difference at all if your docs say something different.
From AIA Document A701-2018:
1.4 A Bid is a complete and properly executed proposal to do the Work for the sums stipulated therein, submitted in accordance with the Bidding Documents.
1.8 A Bidder is a person or entity who submits a Bid and who meets the requirements set forth in the Bidding Documents.
1.9 A Sub-bidder is a person or entity who submits a bid to a Bidder for materilas, equipment, or labor for a portion of the Work.
3.3.2.2 Bidders shall submit substitution requests on a Substitution Request Form if one is provided in the Bidding Documents.
So, if AIA documents are used, it appears only “Bidders” can submit a substitution request.
Thanks everyone. Pretty much as i suspected. My friend’s boss (manufacturer) is trying to get him to submit a substitution request form to the architect and i advised against it. Just wanted to make sure things weren’t different in the public realm and also wanted to give him some ammunition to explain things to his boss
Your friend should be able to get a planholders list from the architect or CM, and can then submit their product to all of the planholders.
The bidding requirements are the owner’s purview. And, most standard forms of agreement between owner and architect contain a provision that the architect will receive and evaluate substitution proposals. I have never seen one that says how many.
Public owner entities usually have have clear provisions for substitutions. I have not seen any that limit who can submit them. And I can safely say that all of the owners, public or private, with whom I have ever worked were interested in saving money and never gave a thought about how busy the architect might be. My only escape hatch is the completeness of the submittal. If it is not sufficiently complete for reasonable evaluation, nothing says I have to hunt down the submitter to get more information.
Until a contract is awarded, a manufacturer may have no idea which “prime” bidders intend to actually submit bids for a project. Often, official bid lists are not complete. As long as substitution requests are properly submitted within the established time limits, I see no good reason other than the architect’s convenience why they should be treated without appropriate evaluation.
After a contract is awarded, it is another story. Especially in public projects, accepting a substitution following award can cause a little trouble. I include Division 01 language that says substitutions following award of contract will not be considered unless 1) the specified products are not manufactured any longer; 2) the specified products will not function in the applications indicated; or 3) the AHJ imposes additional project requirements that demand a change in design. These conditions are rare, but they occur often enough to merit some consideration.
Of course, the private sector owner can do whatever it wants, whenever it wants, having nothing to lose but its reputation.
Massachusetts bidding laws do not require that substitution requests be considered, although it is common practice to do so because it may benefit the owner. However, the law does require that there be at least three viable products that can be used, normally satisfied by listing the three. (The awarding authority can override that, in advance, for limited public purposes.)
Most of the posters here are on the right track by referring to the bidding requirements to make the determination. In the various firms I worked for, manufacturer- or distributor-generated substitutions were never accepted whether public or private.
Pre-bid substitutions were also never accepted because there was never enough time to properly evaluate the request, particularly on technically complex products (which seemed to be the only type that ever had substitution requests).
A mistake I often see in documents is the misplacement of bidding requirements in Division 01 Sections. A/Es should understand that the rules governing substitutions pre-bid and post-award are different. Each has its place in the project manual.
UPDATE: Despite my friend informing his company that they shouldn’t be submitting directly to the architect, they maintain this is the way to do it and that numerous architects have approved their requests for substitution during bidding. So, i guess the reality is, we can beat the “follow the instructions” drum all we want, but it doesn’t really matter what the documents say
YEP, many manuf. tell me that the contractor will not listen to them if they are not in the spec. In many cases it’s no big deal the product is ok etc. so I’ll add them to that addenda. done. Now in some cases the product is NOT want I want and I will NOT grant the substitution.