David: “The architect innocently enough approved it.” This sounds like another example of expecting a specification to CYA. That is not what a specification is for.
No matter what the Owner says he or she likes or doesn’t like with regard to particular manufacturers and products, it is sometimes irrelevant in the context of what the law states about public bids. The next time an Owner requests that you eliminate a particular product or manufacturer from the specifications, you need to educate him or her about the potential legal consequences in doing so, and persuade him/her not to require anything outside the law, and to involve legal counsel before making such a decision. Isn’t this obvious? There are lots of ways to craft a specification to exclude certain products, and by extension manufacturers, from a spec. If parts or maintenance are the issues that concern the Owner, find out what, specifically, special features the desireable product(s) has that the undesirable products do not, and specify accordingly. If the Owner cannot be this specific - he/she needs to accept the fact that, legally, he/she may HAVE NO CHOICE but to accept an equiivalent product during bidding. Your best move is to first KNOW the law regarding public bids (I am often surprised at the total lack of awareness of this most basic requirement among Owners AND architects), make sure that the Owner knows, and specify accordingly.
The great American retailer Marshall Field once said, “Give the lady what she wants.” We as design professionals give the client what they want. If the Owner has very strict requirements on the products that they want on their projects, well then we specify those products and/or requirements.
For example if the college campus has all Schlage locksets, then we will specify Schlage locksets keyed to the Owner’s existing key system. No subsititutions allowed.
Another example is that Seattle School District only allows Collins & Aikmen and Mannington carpeting. They found through years of use that these two manufacturer’s carpets held up better than all the others. Therefore, no substitutions allowed.
In the first example this proprietary lock is allowed because several distributors carry Schlage.
In the second example this is allowed because there are two competitors, though we would prefer to see three.
There are some instances where we specify a proprietary product because nobody else makes a similar equivalent. James Hardie Hardiboard siding comes to mind. This also applies to art type materials such as Ecoresin products.
I believe the intent of the law is to prevent limiting competition and to prevent collusion.
We do not, however, want to swing the doors wide open and let just anyone bid any product on public work projects. Most of the time if we have three products listed we are satisified.
Richard,
The problem was the architect reviewing substitution requests was not familiar with the school district standards and did not know that it was an unacceptable product. Had the specs said that the product was NOT acceptable we would have avoided a mess and the owner would have saved money…and received what they wanted in the first place.
In Massachusetts, the public bidding laws are quite specific. There must be three manufacturers available (whether or not they are named in the spec). Awarding authorities (as we call municipalities, state agencies and other public entities) cannot limit competion for mere convenience or preference. There must be bona fide benefits to the public for the limitation. Limiting to a single hardware company may meet that criteria if it saves the authority in maintenance costs. (Of course, if we’re talking about keying issues, lots of manufacturers can provide Schlage keyways.) As to durability of carpeting, if the authority has records to back up their claim, they’re probably okay. Once those hurdles are past, the awarding authority must authorize the proprietary spec by public vote at a regular meeting. As to products with less than three manufacturers, this is accpetable (with the vote) if the product is important to the design.
How does the reality work? Well, many authorities and designers do not follow the letter of the law. If a contractor or supplier doesn’t make a stink at some point, nothing comes of it. Often, it’s probably perceived by them as being not worth the effort to fight. They want to get done quickly and get on to the next project. On the designer-side, I always point these issues out to project managers to bring up with the client. Most of the time, the client will back down because they fear making the public vote, even in cases where they are on solid ground. Then we specify three products.
Sometimes it’s the other way around and the public client has its heart set on some product or manufacturer of whom we specifiers are very leary. More than once we’ve told a project manager that specifying such might cause liability for our company.
We had a project where the public owner only wanted Parker paint. I guess the maintenance people were familiar with the paint brand and liked it. In this case we convinced the owner of the dozen good paint companys and they allowed us to specify several manufacturers.
That said we don’t want to force an owner to use a product that they are not comfortable with or have had problems with in the past.
Agree, David, but at the same time we, for our own good, must be a little cynical and suspicious of information that comes to us from owner’s sources-- they may be tainted for various reasons [convneience, kick-backs, gifts, etc.] and not really techically sound. Since the owners are ALWAYS bottom line oriented, we must provide them with sound technical, and cost-effective advice, including reliable and tested product sources.
David,
It may be worth pointing out to the client that it’s not the architect forcing them to use something they don’t like–it’s the law! Big difference.
Whenever I specify a product in compliance with an owners standard, I add the words as per Owners standard. or in compliance with Owners standard. I do this to remind (or inform) the contractor and the architect reviewing submittals that the product decision came from the owner. This probably doesnt relieve us of our responsibility to comply with the local bidding laws, but it should, at least, discourage the contractor from submitting products that are not listed in the owners standard. Obviously, it also helps the architect to avoid inadvertently approving products that dont comply with the standard.