substitution request form

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Author Message David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 1013 Registered: 03-2002 Posted on Tuesday, June 10, 2008 - 02:41 pm:    What are the pitfalls of a supplier/contractor not using the supplied substitution request form? For some reason I am seeing a few substitutions come that are not on the form supplied in the project manual. But even more discouraging, I am seeing architects accept the products on THEIR form. Ralph Liebing, RA, CSI Senior Member Username: rliebing Post Number: 858 Registered: 02-2003 Posted on Tuesday, June 10, 2008 - 02:55 pm:    Pitfall, I would guess, is the lack of uniform submittals that you get with various forms. The form is intended and provided so everyone must supply the same information for side-by-side comparison. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 1014 Registered: 03-2002 Posted on Tuesday, June 10, 2008 - 03:04 pm:    We have spent years crafting the language to make the requester liable for any discrepancy in the proposed product. I would hate to get into an argument because the requesters substitution form is missing that language. Ralph Liebing, RA, CSI Senior Member Username: rliebing Post Number: 859 Registered: 02-2003 Posted on Tuesday, June 10, 2008 - 03:13 pm:    Do you have a "disclaimer" or other statement about your position regarding use of the form, or similar text in the Project Manual Section? In either event, urge your colleagues to enforce the specs, for their own good and that of your office. John Regener, AIA, CCS, CCCA, CSI, SCIP Senior Member Username: john_regener Post Number: 398 Registered: 04-2002 Posted on Tuesday, June 10, 2008 - 03:47 pm:    Get a testosterone boost and refuse to review substitution requests that are not submitted with the required form, properly completed. (Oh no! The Architect is holding up the job! Quick, Mr/Ms Architect, just sign the Contractor's form and take responsibility for the substitution by giving it your okey-dokey right away and for free.) David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 1015 Registered: 03-2002 Posted on Tuesday, June 10, 2008 - 04:52 pm:    Ralph, My Section 012500 - Substitution Procedures says explicitly that the substitutions submitted on a form other than following this section is not accepted. It frustrates me that I spent a lot of time considering what goes into my specs only to have some architect do a cursory review and accept a poorly written and incomplete substitution request form. For me it's "Guilty until proven innocent." That is to say, "When in doubt, throw it out." What should I do, if any, about substitutions that are already accepted but are not on the enclosed form? Wayne Yancey Senior Member Username: wayne_yancey Post Number: 59 Registered: 01-2008 Posted on Tuesday, June 10, 2008 - 06:21 pm:    David, You could follow the recommendations of Maynard Blumer who I think has the BEST substitution procedures, bar none. Mr. Blumer uses the following language in his procedures for the Prior Approval Addendum: "Approvals are based upon the opinion, knowledge, information, and belief of Architect at time of issuance of this Addendum and reliance upon data submitted. Approvals are therefore interim in nature and subject to reconsideration as additional data, materials, workmanship, and coordination with other work are observed and reviewed. In proposing items allowed by this Addendum, Bidder assumes all risks, costs, and responsibilities for items final acceptance, integration into Work, and performance." I will e-mail his article on the prior approval process for your information. I have used his process exclusively for the past 18 years with great sucess. That said, it does not stop someone from unilaterally doing something STUPID after bids close. Nathan Woods, CCCA, LEED AP Senior Member Username: nwoods Post Number: 253 Registered: 08-2005 Posted on Tuesday, June 10, 2008 - 08:02 pm:    Wayne has sent me that Maynar Blumer article in the past, and it is excellent. It's a whole theory of thinking about the topic rather than just how to/how not too guide. However, I have not fully wrapped my head around it yet. In the interium, it is my opinion that the provider of the form matters little, as long as the content of the form is complete. In fact, I don't think the specifier/design professional should be providing the form, as it is not OUR substitution, but the contractors! What I do provide is criteria that the form must comply with and include. This criteria includes first and foremost, a narrative explaining the benefit to the Owner if accepted (not a potential benefit, please note the difference), as well as signature lines for the Owner to approve the Architect's review of the substitution as the inital step in the review process, as well as Owner's acceptance/rejection of the substitution after the Architect's review is completed. Mark Gilligan SE, CSI Senior Member Username: mark_gilligan Post Number: 59 Registered: 10-2007 Posted on Wednesday, June 11, 2008 - 12:22 am:    Nathan the reason that you want to provide the substitution form is for the legal language. If you do not define this, the smart contractors will introduce language to their advantage. Nathan Woods, CCCA, LEED AP Senior Member Username: nwoods Post Number: 254 Registered: 08-2005 Posted on Wednesday, June 11, 2008 - 12:14 pm:    Mark, our standard practise is to review and approve or take other appropriate action (usually to red mark the heck out of 'em) all contractor forms intended to be used on a project. This includes RFI forms, substitution forms, submittal approval stamps, etc.... Ralph Liebing, RA, CSI Senior Member Username: rliebing Post Number: 863 Registered: 02-2003 Posted on Wednesday, June 11, 2008 - 12:40 pm:    Wayne, may I horn in for a copy of Mr. Blumer's article also-- thanks! Wayne Yancey Senior Member Username: wayne_yancey Post Number: 62 Registered: 01-2008 Posted on Wednesday, June 11, 2008 - 03:41 pm:    Ralph, I have misplaced your e-mail address. Please send to wayne.yancey@callison.com Sorry, Thanks Bob Johnson (Unregistered Guest) Unregistered guest Posted on Wednesday, June 11, 2008 - 04:25 pm:    Nathan Could you expand on your pholosophy that you don't think the design professional should be providing forms - why do you think that? Why would you want to spend time reviewing different contractor's forms on every project that will probably result in an extended period of revisions, more reviews, and more revisions? Why not just give them a form that is acceptable? Nathan Woods, CCCA, LEED AP Senior Member Username: nwoods Post Number: 255 Registered: 08-2005 Posted on Wednesday, June 11, 2008 - 05:06 pm:    With respect to substitution forms, I suspect it is simply a perceived comfort level by the shareholders of my company. We generally do not want substitutions and strive to limit the terms and conditions under which substitutions are allowed. However, as contractors become "partners" more often these days, we also do not want to limit the Owner's ability to gain a benefit from accepting some substitutions, so we strive for balance between liability, assurance, and benefit. By not creating or furnishing the substitution form, there is the perception of added responsibly imparted to the Contractor because it’s their form, their substitution, and their responsibility to be forthcoming with enough information for the A/E to make a reasonable determination. As for the other forms, we acknowledge that most contractors these days are using pre-purchased construction management software with their own proprietary forms and templates. For the most part, they have limited flexibility in what they can accomplish with those templates, so we just ask for basic items, and let it run. For example, on RFI’s, we as for the following (as a minimum): 1. RFI number on upper right corner 2. RFI Subject/Title descriptive caption 3. Contractor’s Suggestion (after the issue/question, and above A/E Response field) 4. Removal of Cost & Time impact check boxes. We find it annoying that contractors perpetually check these boxes PRIOR to receiving our answer. IF our answer triggers a cost/time impact, then a COR should be initiated, but the RFI form itself should not be the tool to implement that. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 1018 Registered: 03-2002 Posted on Wednesday, June 11, 2008 - 06:25 pm:    Nathan, I learned in a construction law class: "The party that writes the contract is in control and writes the contract to protect the writer." This is why the architect writes the substitution request form. For example our substitution request form has the following language. "Undersigned agrees to pay cost associated with acceptance of proposed substitution necessitating changes to design, details, and construction, including associated architectural, engineering, and consultant fees." I never see that in a contractor provided form. Whether it is enforceable is another thing but at least we get across the point that we mean business. J. Peter Jordan Senior Member Username: jpjordan Post Number: 274 Registered: 05-2004 Posted on Thursday, June 12, 2008 - 10:46 am:    A couple of comments in response to Mr. Woods and Mr. Axt. While many design firms do not want substitutions, my experience is that they are almost inevitable on larger project. I recently spoke with one of my clients about a composition shingle product that had been taken off the market in the six months between the time we specified it and the time the contractor went to buy it. Shingles with comparable performance did not have the same visual quality. S**t happens; deal with it. Firms that too tightly specify, using essentially proprietary specifications for many products, are almost begging fore substitution requests. What is implied in the comments above is the acknowledgement that substitutions also come in the form of "value engineering" exercise. I have also seen Owners request "voluntary alternates." On private work, the contractor may simply submit a list of qualifications to his price, many of which constitute requests for substitutions. While many of these items may be undesireable, the Owner may wish to consider them to reduce cost. Mr. Axt points out that the point of drafting contract language is to protect the author; however, it should also be pointed out that ambiguities in a contract will be construed against the party drafting the document. I would also suggest that whatever the form says, the architect takes on some design liability if he/she approves the substitution. I like Mr. Regner's suggestion about getting a "testosterone boost". In my experiece, too many architects don't know (1) how to properly evaluate and act on substitution requests and (2) what their liability is upon approval. Nathan Woods, CCCA, LEED AP Senior Member Username: nwoods Post Number: 256 Registered: 08-2005 Posted on Thursday, June 12, 2008 - 11:32 am:    Peter, I agree about the assumed liabilty with approved substitutions. I have read and ingrained in my head that an "approved substitution is the same as if the architect origionaly specified it". That is why our criteria if the data required of the GC is so comprehensive, and why as the design professional we view substitutions with such trepidation. I still think it's patently unfair that the client reaps the potential benefits and the A/E takes the risk. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 781 Registered: 07-2002 Posted on Thursday, June 12, 2008 - 12:55 pm:    we're running into the issue where what the contractor should be submitting is not only a substitution request but a deviation request and I've modified our form to include as a "substitution" the "change in construction method from what is shown or specified. And in those cases, we do require a LOT of information over and above just the product "change". Recent examples include a "substitution" of one stone setting product for another --- but the contractor didn't mention that they were changing from mud-set to thin-set (we caught that in installation). I have another on my desk that appears to be a request for a different waterproofing, but slipped in with it is the removal of the mud slab and putting the waterproofing on the crushed stone sub-base. (and the contractor whines about how long we take to approve these things and HOW MUCH paperwork we require....) the thin-set "substitution was rejected, of course. the removal of the mud slab will probably be rejected... but this is what we are seeing as "substitutions" these days. Richard Howard, AIA CSI CCS LEED-AP Senior Member Username: rick_howard Post Number: 185 Registered: 07-2003 Posted on Thursday, June 12, 2008 - 01:27 pm:    Whatever form you use for substitutions, you first have to get the contractor to realize that they have a substitution instead of a submittal. Part of the problem is that the contractor's handling of submittals is often nothing more than passing them along from the subs, a task usually performed by a clerk rather than someone who might recognize that it is not what is specified; and despite their stamp indicating everything complies with the contract documents, there is no review on their part. The reason I perfer to use a prescriptive product list rather than a nonproprietary listing is because it makes our architects ask if something submitted is OK rather than taking the word of the contractor. If it's not what I asked for, it must be a substitution, even if the contractor doesn't identify it as such, and they know they have every right to reject it and tell the contractor to give us one of the listed products or go through the substitution process. We find that most of the time they choose to go with what is specified. They can't afford to wait for a thorough review and approval process that may end up in yet another resubmittal. David J. Wyatt Senior Member Username: david_j_wyatt_csi_ccs_ccca Post Number: 110 Registered: 07-2005 Posted on Thursday, June 12, 2008 - 02:07 pm:    Bravo, John Regener!