Question regarding incorrect use of "...

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Author Message James Ditch (Unregistered Guest) Unregistered guest Posted on Tuesday, July 23, 2019 - 10:58 am:    I have a question regarding the use of the term "basis of design" in a specification, and the implications of using it where it shouldn't be used. I am looking at a specification that lists two types of piping for use in HVAC systems (232113). An excerpt of the spec is below: A. Chilled water, condenser water, and heating hot water piping: 1. Steel: Schedule 40. 2. Copper: Schedule 40. 3. PVC: Schedule 80. PVC is basis of design. The issue is that PVC cannot be used in heating hot water piping (steel or copper must be used) (this is common knowledge for those that work in this field). However, the phrase "PVC is the basis of design." was included as shown (intended only for chilled water piping). The contractor still submitted PVC pipe for heating hot water piping, with a note stating that it is not rated for this use and cannot be used. My question is what the legal implications are for stating "basis of design"? It was my understanding that a "basis of design" had to be a specific manufacturer/model to be valid. Thanks for your input. Brian Payne Senior Member Username: brian_payne Post Number: 188 Registered: 01-2014 Posted on Tuesday, July 23, 2019 - 12:27 pm:    This may or may not help, its not exactly for basis of design, but communicates a similar thought process. In general i agree with your understanding. "The named manufacturer or product denotes the quality standard of the product desired and does not restrict bidders to a specific brand, make, manufacturer or specific name; they are used to set forth and convey to bidders the general style, type, character and quality of product desired; and equivelent products meeting specifications will be acceptable." anon (Unregistered Guest) Unregistered guest Posted on Tuesday, July 23, 2019 - 02:22 pm:    James, It depends entirely on how "basis-of-design" is defined elsewhere in the Project Manual (if, in fact, it is defined). MasterSpec places this definition in Section 01 6000 Product Requirements: B. Basis-of-Design Product Specification: A specification in which a single manufacturer's product is named and accompanied by the words "basis-of-design product," including make or model number or other designation. Published attributes and characteristics of basis-of-design product establish salient characteristics of products. 1. Evaluation of Comparable Products: In addition to the basis-of-design product description, product attributes and characteristics may be listed to establish the significant qualities related to type, function, in-service performance and physical properties, weight, dimension, durability, visual characteristics, and other special features and requirements for purposes of evaluating comparable products of additional manufacturers named in the specification. Manufacturer's published attributes and characteristics of basis-of-design product also establish salient characteristics of products for purposes of evaluating comparable products. I think that Contractor has a legitimate Change Order on this one, however, since PVC is not the appropriate material. Guest (Unregistered Guest) Unregistered guest Posted on Tuesday, July 23, 2019 - 02:25 pm:    The answer to your question depends on what was written in Division 01 regarding basis-of-design (products). Generally it would would require the naming of a specific manufacturer and model/product. But the wording could be such to allow this type of thing. Sounds like there might a change order coming soon. Owner could argue that contractor was aware that PVC was not acceptable (as evidenced in the submittal) and should have priced one of the acceptable alternatives. Contractor could argue that they are entitled to rely on the accuracy of the documents and priced PVC, and should therefore be entitled to an adjustment of the contract sum. Who will blink first? A better approach for the future would be to remove PVC as it is not rated for the application, and word the paragraph for the contractor to provide one of the following materials if both steel and copper are acceptable. Greta Eckhardt Senior Member Username: gretaeckhardt Post Number: 98 Registered: 08-2013 Posted on Tuesday, July 23, 2019 - 03:01 pm:    As suggested by others, we rely on MasterSpec Division 01 to provide the detailed definition of Basis of Design. In addition, I always precede the name of the manufacturer/product with the following language: "Basis of Design Product: Drawings and specifications are based on the following product. Subject to compliance with requirements, provide the following or equivalent product from acceptable manufacturer." Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 903 Registered: 10-2007 Posted on Tuesday, July 23, 2019 - 05:37 pm:    It seems basis of design is used to define criteria when you delegate design of a portion of the project and when you define the preferred product but are open to allowing the contractor to submit alternates. They should be treated separately. When the listed product used to establish the basis for approval of an alternate product you are left guessing what are the characteristics required of the alternate. Suggest that these be treated as substitutions. How do you consider the perceived quality of the alternate product. When used to establish constraints on the delegated design I recommend that you simply state what is required or not allowed. If you are delegating design it should be understood that the contractors design be compliant with what is in the code. While structural engineers will sometimes list design criteria I am not aware of them using the term basis of design like architects use the term. James Ditch (Unregistered Guest) Unregistered guest Posted on Wednesday, July 24, 2019 - 09:58 am:    Thanks for the replies. I really do appreciate the insight. Please feel free to keep them coming. Unfortunately, there is no definition of "basis of design" in the Division 01 specs - that's actually the first place I looked when I started to research the question. I looked through all of the General Requirements and didn't find anything that provided any clarity one way or another. anon (Unregistered Guest) Unregistered guest Posted on Wednesday, July 24, 2019 - 11:43 am:    If I were the Contractor, the first thing I would do is issue a RFI asking for definition of the term "basis of design." If Architect clarifies that this means what has been suggested in the above posts, then I would submit a Change Order. You might look into the Spearin Doctrine, as Guest points out, Contractor is entitled to rely on the accuracy of the documents. Since PVC is listed as "basis of design" and cannot be used for intended purpose, a Change Order is warranted and should be be prepared and submitted by Contractor or Architect for the proper pipe material. Gail Ann J. Goldstead, AIA, CSI, CDT, LEED AP, BD+C Senior Member Username: ggoldstead Post Number: 22 Registered: 03-2015 Posted on Wednesday, July 24, 2019 - 01:16 pm:    I appreciate this conversation. It's an on-going hot issue. Maybe Basis of Design wasn't in your project spec, but Basis of Design is defined in the current Masterspec SECTION 016000 - PRODUCT REQUIREMENTS: 1.3 DEFINITIONS B. Basis-of-Design Product Specification: A specification in which a single manufacturer's product is named and accompanied by the words "basis-of-design product," including make or model number or other designation. Published attributes and characteristics of basis-of-design product establish salient characteristics of products. 1. Evaluation of Comparable Products: In addition to the basis-of-design product description, product attributes and characteristics may be listed to establish the significant qualities related to type, function, in-service performance and physical properties, weight, dimension, durability, visual characteristics, and other special features and requirements for purposes of evaluating comparable products of additional manufacturers named in the specification. [Manufacturer's published attributes and characteristics of basis-of-design product also establish salient characteristics of products for purposes of evaluating comparable products.] D. Comparable Product Request Submittal: An action submittal requesting consideration of a comparable product, including the following information: 1. Identification of basis-of-design product or fabrication or installation method to be replaced, including Specification Section number and title and Drawing numbers and titles. 2. Data indicating compliance with the requirements specified in Part 2 "Comparable Products" Article. E. Basis-of-Design Product Specification Submittal: An action submittal complying with requirements in Section 013300 "Submittal Procedures." PART 2 - PRODUCTS 2.1 PRODUCT SELECTION PROCEDURES 7. Basis-of-Design Product: Where Specifications name a product, or refer to a product indicated on Drawings, and include a list of manufacturers, provide the specified or indicated product or a comparable product by one of the other named manufacturers. Drawings and Specifications may additionally indicate sizes, profiles, dimensions, and other characteristics that are based on the product named. Comply with requirements in "Comparable Products" Article for consideration of an unnamed product by one of the other named manufacturers. a. For approval of products by unnamed manufacturers, comply with requirements in Section 012500 "Substitution Procedures" for substitutions for convenience. 2.2 COMPARABLE PRODUCTS A. Conditions for Consideration of Comparable Products: Architect will consider Contractor's request for comparable product when the following conditions are satisfied. If the following conditions are not satisfied, Architect may return requests without action, except to record noncompliance with the following requirements: 1. Evidence that proposed product does not require revisions to the Contract Documents, is consistent with the Contract Documents, will produce the indicated results, and is compatible with other portions of the Work. 2. Detailed comparison of significant qualities of proposed product with those of the named basis-of-design product. Significant product qualities include attributes, such as type, function, in-service performance and physical properties, weight, dimension, durability, visual characteristics, and other specific features and requirements. 3. Evidence that proposed product provides specified warranty. 4. List of similar installations for completed projects, with project names and addresses and names and addresses of architects and owners, if requested. 5. Samples, if requested. Gail Goldstead ken hercenberg Senior Member Username: khercenberg Post Number: 1226 Registered: 12-2006 Posted on Wednesday, July 24, 2019 - 04:50 pm:    From numerous sessions spent talking with construction attorneys I can tell you that your current bottom line is that the courts have repeatedly decided that the entity that prepared and issued the documents doesn't get to determine how the reader of the documnets interprets its meaning. Was the Contractor required to submit an RFI? Not likely. Was the Contractor required to provide the right product because they knew that the documents were flawed? Not likely. Is the Contractor entitiled to a Change Order? Probably. Was the term "Basis of Design" misused? Sure sounds like it. My guess is that someone reused a spec from another project and either passed right by the content or had no clue as to what it meant. Makes a really good argument as to why so many engineers shouldn't be writing their own specs without first getting training from their local CSI chapter. Wouldn't surprise me to see them have their own General Requirements Section. Probably have firestopping and roof curbs in the wrong Division too. You might suggest that the Mechanical Engineer apologize to the team and try to save your relationshihp with your client. Phil Kabza Senior Member Username: phil_kabza Post Number: 628 Registered: 12-2002 Posted on Sunday, July 28, 2019 - 12:37 pm:    "Basis of Design" first reared its head in MasterSpec as a response to changes in the A201 two versions ago - it was intended as a workaround for requiring a substitution request and subsequent owner review and approval every time the Contractor proposed using a product other than one listed in a section. Since then, the BOD horse has left the barn, and architects have often come to think that they need to list as basis of design the first product they found in a Google search for every product specification. Good sense suggests that this method of proprietary specifying should only be used for design-critical items where there is notable variation between available products and where identifying the salient characteristics is very complex or coordination requirements of the product with other aspects of the design are critical. A specifier shouldn't list a gypsum board product as a basis of design unless it is a specialty item with characteristics that are not common (I can't think of one). The same with standing seam metal roof panels. And concrete curing compounds. We might list a BOD for non-conductive girts for a rainscreen panel system, as the details may have been developed around a particular configuration that takes into account the thickness of the continuous insulation, and there are significant differences between the available products of this type. We recently completed a LEED v4/Living Building Challenge project where the architect requested that the manufacturer/product with the most transparent BPDO documentation be listed as the BOD for each section. We're waiting to see how this plays out with the CM. Gail Ann J. Goldstead, AIA, CSI, CDT, LEED AP, BD+C Senior Member Username: ggoldstead Post Number: 23 Registered: 03-2015 Posted on Monday, July 29, 2019 - 08:57 am:    Phil makes some very good points above, especially describing it as method of proprietary specifying and that one should be careful in using it. I've seen the use of specifying Basis of Design referred to as the lazy way to specify, rather than to do the research to name at least 3 products for every item. However, I found a Masterspec November 2002 version of 01 60 00 Product Requirements that list Basis of Design under Definitions, which means this method of specifying has been around for at least 20 years or so: Basis-of-Design Product Specification: Where a specific manufacturer's product is named and accompanied by the words "basis of design," including make or model number or other designation, to establish the significant qualities related to type, function, dimension, in-service performance, physical properties, appearance, and other characteristics for purposes of evaluating comparable products of other named manufacturers. In my work overseas, we have found that most of the contractors hate it when architects use proprietary specifying. Gail Goldstead Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 904 Registered: 10-2007 Posted on Monday, July 29, 2019 - 01:00 pm:    Basis of design is unfair to the contractor. By not explicitly listing the critical features the contractor does not know what is important. If all of the characteristics are important then it is likely that no other product is acceptable. If that is the case simply says so. Paul Sweet (Unregistered Guest) Unregistered guest Posted on Monday, July 29, 2019 - 12:37 pm:    For state work in Virginia Basis of Design is limited to drawing details: "Recognizing that it is often necessary to use some piece of equipment as a basis for designing, dimensioning and detailing, the drawings (but not the specifications) may be noted to indicate that the A/E has designed or detailed around a particular brand of equipment. In doing so, the A/E shall ensure that there is adequate space, capacity, etc., available to accommodate the other brands indicated in the specifications." The A/E must still list 3 or more manufacturers or write a performance spec that 3 or more manufacturers can meet. Ellis C. Whitby, PE, CSI, AIA, LEED Senior Member Username: ecwhitby Post Number: 466 Registered: 03-2003 Posted on Monday, July 29, 2019 - 02:56 pm:    Somewhat off topic: I am often bemused by the requirement of having 3 or more manufacturers listed for equipment (and then with the need to then ensure that there is enough space and utilities available, while at the same time the client requiring that there is no “wasted” space {maximizing the net/gross ration}). All too often I have encountered conditions where the layout of “equal” equipment was vastly different, and major redesign of the MEP (and often structure) was required, if one manufacture or model is selected over another. Dental chairs are good example: some have all utilities (power, water, etc.) fed through the bottom of the chair, while others have utilities being fed from the floor and wall, or floor and ceiling, or all three. If the AE has to design each chair location to incorporate every “equal” chair into the original “bid” design, then the overall design and construction of the necessary utilities is markedly more time consuming and costly. Alternatively, if the final “design” is only made once a specific model chair is selected, then the total “added” design and construction cost is minimized, since it is only done once and no “duplicate” utilities are installed. Of course, there are also the cases where the equipment used as “basis of design” during design may not be manufactured by the time construction actually ensues (or when the chairs must be ordered). Sophisticated Owners’ know this. All too many Owners’ have no clue. Richard Baxter, AIA, CSI, CDT Senior Member Username: rbaxter Post Number: 130 Registered: 12-2004 Posted on Monday, July 29, 2019 - 03:58 pm:    I would like to know the best way to specify products that Interior Designers list very specifically on their Finish Material Schedules. They are sometimes specific about things that don’t need to be that specific. I generally indicate Finish Material Schedule items as “Basis of Design” products, referring to the schedule so the info isn’t duplicated; but then I list the important characteristics of the listed products for the sake of later assessing proposed substitutions. But I know it isn’t really a “Basis of Design”, because it is not likely that other manufacturers provide the exact same product and design. Would it be better to just reference the finish material schedule and leave all responsibility for those items in the interior designer’s hands? The other problem is that the Interior Designers may change the products without telling specifiers, thus making the listed characteristics potentially inaccurate. Is it better therefore, to not even list characteristics of the scheduled interior finish products? Dan Helphrey Senior Member Username: dbhelphrey Post Number: 33 Registered: 12-2018 Posted on Monday, July 29, 2019 - 04:23 pm:    Richard, You must include criteria on which proposed substitutions will be evaluated - if you don't, then and argument could be made that you have to accept any and all substitutions proposed. Where the appearance of the item is one of the criteria (e.g. carpet patterns), I add a line such as, "substantially similar in appearance, as judged solely by the architect." Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 905 Registered: 10-2007 Posted on Tuesday, July 30, 2019 - 01:26 am:    I see structural engineers designing for just one product even when there is supposedly a requirement that 3 be specified. One project pointed out the problems with specifying 3 products. This was a small California school project where we specified a particular plywood web I joist. The contractor requested a substitution so they could use another manufacturer’s joist, so we processed it as a substitution and required that they pay the cost of modifying the construction documents. Because the new I joist had different dimensions we had to change a number of details changing such things as joist hangers. The revised design then had to be reviewed by the agency having jurisdiction. When we submitted our costs for reimbursement it turned out that this was significantly more expensive than the joist suppliers profit. The joist supplier paid up and we got paid for our time. The point is that were we to provide alternate design for two or three “acceptable” products the additional design costs will likely exceed the differences in the cost of the products. So in order to save the client money the client actually spends more. Structural plan checkers expect a complete design for each alternate shown on the documents. So we can either comply with the letter of the law or we can specify one product and provide the client with a less expensive project. In my experience I have had no problem with specifying one product. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 1461 Registered: 07-2002 Posted on Friday, August 23, 2019 - 03:19 pm:    I use "Basis of Design" as exactly that -- we have designed around a particular system (say, a curtainwall assembly) and our details are based on using that system. I will list two or three other manufacturers in the specs, but the understanding is that if you use one of the other manufacturers, all the dimensioning and calculations will have to be redone. We've done the work -- and the engineering-- for the Kawneer system, not for the manufacturers listed in the specs. Owners often get complaints from the contractor that by using "basis of design" or "delegated design" that we (the architects) aren't doing our job -- but I've had conversations with owners to help them understand that we are being paid to design the system only once; and if it has to be designed again, we either get additional fees, or the contractor has to take that on. For less critical things, we really do like to list multiple manufacturers and products in the specs. Ceiling panels -- we don't do "basis of design" for something like a ceiling panel and grid; there are too many credible products out there. Greta Eckhardt Senior Member Username: gretaeckhardt Post Number: 103 Registered: 08-2013 Posted on Friday, August 23, 2019 - 03:24 pm:    I agree with Anne, which is why, as I posted in July, I always specify BoD products beginning with the following statement (which I wish could be one of the optional text choices in MasterSpec but by now I can write it in my sleep): "Basis of Design Product: Drawings and specifications are based on the following product. Subject to compliance with requirements, provide the following or equivalent product from acceptable manufacturer." After naming the product, I include a detailed enough description of the salient attributes to give guidance as to what would be considered "equivalent." Chris Grimm, CSI, CCS, SCIP Senior Member Username: chris_grimm_ccs_scip Post Number: 495 Registered: 02-2014 Posted on Friday, August 23, 2019 - 05:25 pm:    Greta, you can save a lot of typing with this easy trick. If you use Word, select the text after typing it once, hit Alt-F3, confirm the name of your AutoText entry, and from now on you can type a whole phrase (or a whole group of paragraphs even if you like) with just the first few letters and hit enter when the tool-tip appears. Or type your AutoText name and hit F3. Just be sure to say Yes when you close all Word documents and it asks about saving the Normal template. I use lots of these. It makes things like this a lot easier and more consistent. Greta Eckhardt Senior Member Username: gretaeckhardt Post Number: 104 Registered: 08-2013 Posted on Friday, August 23, 2019 - 05:33 pm:    Thanks Chris! This is just the sort of trick I have been looking for but never seem to have quite enough time to figure out for myself. I will try it and probably become an advocate! Chris Grimm, CSI, CCS, SCIP Senior Member Username: chris_grimm_ccs_scip Post Number: 496 Registered: 02-2014 Posted on Friday, August 23, 2019 - 05:36 pm:    James, What does this project have for the general conditions? If A201, see 3.2.2 of the 2017 edition that does require the Contractor to promptly report to the Architect any errors, inconsistencies or omissions, and 3.2.4 makes it clear that if they did not do so, they may have to pay for the portion of the damages that would have been avoided if they had reported it promptly. EJCDC may have something similar. No doubt it is a very odd use of the term Basis of Design here. Ed Storer Senior Member Username: ed_storer Post Number: 18 Registered: 05-2009 Posted on Wednesday, August 28, 2019 - 08:01 pm:    I started using "basis of design" specifications in 1988 when I was a "specification programmer" for the automated specification system that became known as Masterspec Q&A. The firm that I worked for had designed a new high rise that would house their offices. During construction, an issue (and change order) arose over the elevator machine rooms. The design and specification were based on a particular elevator. The specifications included several manufacturers - all capable of producing elevators with performance, finishes, etc, meeting the design. The problem was with the machine room layout. The approved elevator required a machine room that required cutting a hole in a shear wall. If a proper "basis of design" specification had been used, the cost of the change would have been borne by the Contractor. It wasn't. I felt that had the basis of design had been specified as such, then the change wouldn't have been necessary or would have been priced appropriately. I don't try to use BoD specs instead of proprietary specs. Interior finishes are a perfect example of this - it's hard to get an interior designer who spend days selecting a wallcovering to accept anything, but their selection. Proprietary specs (open or closed) are appropriate when appearance is more important then function. My Section 016000 is very specific about what Basis of Design means and how it is different from a proprietary spec.