Is okay to specify manufacturers that are not acceptable?
Occassionally we have a need to specify a manufacturer that is not approved. Partly this is to reduce the number of substitution requests. I don’t plan on specifying all the products not approved, just the ones we typically always get.
Any problems with this procedure?
I’m not clear on why you would specify an unacceptable product/manufacturer. Is it unapproved or unacceptable?
David, I lov ya, but, sometimes you take a point to far. If you were to ask if you should allow in manufacturers whom you don’t like but provide an acceptable product, the answer should be yes (prejudice being a bad thing) but. . .
“Cool is a rule but sometimes bad is bad!”
Maybe I am not being clear.
For example, we alway specify Sargent, Schlage, Corbin Russwin, and sometimes Best and Yale. We don’t want Falcon, Arrow, Quikset or Weiser. What would be wrong with listing those manufacturers as unacceptable?
The strategy is save both the rep, distributor, GC and architect a lot of time reviewing a substitution request that is going to be rejected anyway.
OH! You mean
2.2 UNACCEPTABLE MANUFACTURERS
A. Falcon
B. Arrow
for example.
Yes why not.
David:
You proposal creates three categories:
1.Who you want
2.Who you don’t want
3.Everybody else (Those that are not mentioned and whose acceptability is totally unclear)
If you list only Acceptable Manufacturers throughout your spec you have only two categories
Binary systems are much clearer to people as well as computers.
Specifying that a certain manufacturer is not acceptable can be construed to be a slam against their products which could result in a negative impact on the architectural firm and the specifier - not to mention the potential for a sticky situation for the Owner having to defend the actions of his design team.
It seems to me that the specifier should use one of the manufacturer reps tricks - but in reverse. Most of us have seen them try to get us to use terminology or performance criteria in our specs that would make their product the only one complying with the spec. We can eliminate what we consider unacceptable products by reversing the manufacturer rep’s process. Write the section such as to identify what is “not acceptable;” ie, wall covering with red balloons, perm ratings higher than X, compressive strengths less than Y, etc. Select the unacceptable criteria based on what your “unacceptable” manufacturer’s product has without specifying the manufacturer by name.
Just a thought.
Ron
Why don’t you make “substitutions” unacceptable? I not a specifier, but I work with plenty who do not allow substitutions.
I am concerned that listing “unacceptable manufacturers” without clear evidence of their product’s inferiority, might open the Architect and/or Owner up to legal action for defamation.
Interesting concept…when you go to a restaurant do you order what you want or what you don’t want? Do you tell the waiter you’ll consider substitutions?
Interesting. This discussion about Open Proprietary vs. Closed Proprietary specifying has a seasonal twist.
I agree with Richard. Keep it to two groups only: those you know and approve of, and all others are disapproved.
So what about the third group, those you dont know or havent evaluated yet? You will not accept them on the current project, but they can come visit you later and convince you that they belong on the Nice list, and not the Naughty list. Then, next Christmas er next Project, if they have been good little boys or girls, they will find their name listed in your project manual under the tree.
Ho! Ho! Ho!
I have listed the products we want and then listed the statement No substitutions. This procedure tends stifle innovation and creativity.
Think of it this way. You get together with spouse or friends to discuss seeing a movie. First you tell them the movies that you want to see. Then you tell them the movies that you do NOT want to see. After comparing lists, someone suggests a movie that is not on either the see or no see list. You then have to evaluate whether the movie sounds interesting enough to see.
Same procedure goes with products. Our office has a listing in our masters of products we want to see in our projects. So why not list those we don’t want to see and allow the contractor to propose substitutions for those not on either list?
David:
yes, listing “who you don’t want” can be considered restraint of trade and defamation, which is precisely why we don’t do that as a practice. If you have legitimate reasons to not use them, that is part of the substitution process, and a “smart rep” will know not to bother you anyway. But no – you can’t list “unacceptable” suppliers and it would be a crass, impolite and bad thing to do.
I want to reemphasize Marshall Fryer’s comment about the potential for defamation. As it is, a few manufacturers play very rough with designers who specify proprietary products. If a company was listed as “not acceptable”, there is a definite possibility of a defamation law suit.
I don’t understand. How is listing 3 manufacturer’s and saying No Substititions, not also restraint of trade?
How is saying, “Electro galvanized nails not acceptable.” or “Polyurethane sealants not acceptable.” or “Type 6,6 nylon fiber not acceptable.” also not restraint of trade?
I am not trying to blacklist anybody, just clearly identify what I want and what I don’t want.
There is a difference between “I want no concrete plank siding.” and
I want no James Hardie Siding. One appears non judgmental. I have simply made a choice of material. The other mentions a company and implies that I don’t want them.
In reverse, race prejudice works the same way. An employer can say; “Thank you Mr. Chavez but we are not going to offer you a job.” The comment is kept specific to me as a person. If the employer says; We dont want any of your kind! Then Id sue him. He may feel the same way but he cant express it or hell get in trouble.
As I and several others have indicated previously, any unsubstantiated disqualification of a manufacturer can have unwanted consequences.
However, it is occasionally desirable to circumvent repeated substitution requests, job after job, for the same product. Perhaps something like:
Available Products:
ABC Co., “DEF” series.
GHI Co., model no. “JKL”
Rejected Products: The following product has been reviewed and found to not meet the requirements of this Section:
MNO Co., “PQR” series.
By limiting the exclusion and giving a specific reason why, the manufacturer is much less able to claim defamation, and if he has another product (that you might not know about) that does meet the requirement, he can still propose it.
In answer to Daves question, I believe listing 3 manufacturers and saying No Substitutions is obviously restraining trade. Such language is really a compromise between specifying the one best product possible (which presumably would get you the highest quality, but would restrict competition, encouraging an unreasonably high initial cost) and specifying every possible product (which would permit total competition for a much cheaper initial cost, but at the great risk of quality.) We of course want the best products and the lowest costs but we cant have both. We have to find the middle ground somehow. One way to get as much of both as possible is to require at least 3 products so that the competition can keep the costs down while at the same time allowing only the presumed best products to be specified.
Personally, I prefer not to use the term, No Substitutions because it eliminates all other products regardless of whether they are worse, better, or equal and I dont see how that serves the Owner. Im not so presumptuous as to assume that the products I prefer to specify couldnt possibly be inferior to something that has not yet been adequately introduced to me.
With regards to your comment on restraining trade, I dont think any manufacturer can reasonably claim they were defamed simply because their products were not included on your list. Firstly, there are too many possible reasons for not including a product (You didnt like it, you were unaware of it, it was not appropriate, you forgot about it, you accidentally deleted it, etc.) Secondly, such a claim would place an unreasonably enormous burden on our shoulders. We would have to seek out and include every possible manufacturer available in the area. We would also have to include any other products that could have possibly done the job. (Waterproofing manufacturers, for example, could claim that choosing one type of waterproofing implies that all the other types of waterproofing are inferior choices.) We might as well hand an unedited Masterspec to the Contractor and call it good.
I agree with what others have said here, that specifically stating that a certain manufacturers product as unacceptable, as opposed to simply not including them on the list, can reasonably be understood as a defaming statement. It implies that you, as an authority on the comparative quality of products, knew all about the product and all of its competition, and that you would never use it due to its inferiority. Otherwise you wouldnt have made a special effort to make sure it couldnt be used. It also implies that all manufacturers that were not singled out have better products.
Including a product automatically implies that you believe it is one of the best. Listing a product as unacceptable automatically implies that you believe it is one of the worst. Simply not including the product implies nothing. It is equivalent to saying no comment.
I have been telling people for several years that there are very few bad “products” out there which implies that there are few bad “manufacturers.” More often there are poor workmanship, poor design decisions (product selection), or bad detailing. Even poor quality products have a place on certain projects when they are installed properly. I have told a number of people that I would rather have a mediocre product installed by a good mechanic than a very good product installed poorly. There are probably a number of exceptions to this observation, but most people I have discussed this with have agreed with my position. I believe this to be especially true with waterproofing, roofing, and painting, but if you think about it, there are a number of other work items you might be tempted to list.
Good installers will tend to use better products and do it right the first time. They may also be better at resisting a general contractor who might compromise an installation to pick up a couple of days on the schedule.
The implication in many specifications is that it is the product that matters most rather than the installer. Has anyone done a specification where the emphasis was on qualifying installers (applicators, erectors, etc.), focusing on specifying the mechanic rather than the product?
Guys,
I’m not defaming anybody. It’s not like I am stating in the specs that a certain product is crap or that the CEO of the company is a child molester. What I am saying is that for this particular project/client/application that their product is not acceptable.
Often we have clients that give use school district standards to follow. These standards spell out programming items such as VCT in the classrooms and wood floor in the gym. Sometimes these standards get quite specific and describe products in great detail. Sometimes the standards list acceptable and unacceptable manufacturers.
Who knows why the Owner does not want a particular manufacturer or product. Maybe they have had problems with the product in the past, maybe they dislike the distributor or rep, maybe the manufacturer contributes to the wrong political party. Sometimes we ask and sometimes we just do what they want.
We had an incident a while back where the owner did not want a particular folding partition company. Since there are several fine folding partition companies we had no problem excluding them form the manufacturers list. Come bid time the unlisted manufacturer submitted a substitution. The architect innocently enough approved it. Come construction the owner gets the submittal from the unlisted manufacturer and gets upset. We told you that we did not want this manufacturer’s partitions. It’s in our standards. Why didn’t you follow our standards and give us what we want?
In the end the owner paid more to have another folding door installed. I believe the problem had to do with maintenance personnel and ease of repair. Anyhow we could have saved a lot of grief if only we had just listed the manufacturer that the owner did not want.