| Author |
Message |
Ronald L. Geren, FCSI, AIA, CCS, CCCA, SCIP
Senior Member
Username: specman
Post Number: 1186
Registered: 03-2003
| | Posted on Tuesday, February 18, 2014 - 02:57 pm: |    |
I'm in a situation where Manufacturer X was listed along with other acceptable manufacturers. Manufacturer Y was intentionally not listed, because the owner had a bad experience with them.
However, Manufacturer X bought out Manufacturer Y and is now a division of Manufacturer X, but the tradename was retained.
Now, the submittal comes in using the former Manufacturer Y product's tradename, but is listed as a Manufacturer X product, thus complying with the specification, or so they say.
Owner is upset. Any suggestions on how to remedy the situation?
Ron Geren, FCSI, AIA, CCS, CCCA, SCIP
www.specsandcodes.com |
ken hercenberg
Senior Member
Username: khercenberg
Post Number: 713
Registered: 12-2006
| | Posted on Tuesday, February 18, 2014 - 03:09 pm: | |
Explain the situation.
If technically the product submitted meets the spec, Owner preference notwithstanding, it's hard to reject a compliant product.
If it was a closed proprietary spec and the product submitted is not the product Manufacturer X used to make before buying Manufacturer Y, you probably have an out.
Otherwise the only recourse I can think of is that the Owner may have to pay an upcharge for a different product/company. |
Ronald L. Geren, FCSI, AIA, CCS, CCCA, SCIP
Senior Member
Username: specman
Post Number: 1187
Registered: 03-2003
| | Posted on Tuesday, February 18, 2014 - 03:29 pm: | |
Ken, thanks. I've done some additional research on the companies involved and here is the situation from what I can gather:
Company A owns Manufacturer X. Company A also bought Company Y, is keeping the brand, but is listing it as "A Division of Manufacturer X."
Because Company A owns both, I think this is more like General Motors and their brands. If I specify GM, I would expect a car from either GMC, Chevrolet, Buick, or Cadillac. However, in my case, I specify a Cadillac--a brand under the GM umbrella. If they give me a Chevrolet, I would not be a happy person.
The only crinkle in the system is the listing of Manufacturer Y as "A Division of Manufacturer X." Does that mean they really are a Manufacturer X product or is it still manufactured by Company A (the parent company)?
Thoughts?
Ron Geren, FCSI, AIA, CCS, CCCA, SCIP
www.specsandcodes.com |
John Regener, AIA, CCS, CCCA, CSI, SCIP
Senior Member
Username: john_regener
Post Number: 681
Registered: 04-2002
| | Posted on Tuesday, February 18, 2014 - 08:39 pm: | |
What does Division 01 specify for substitutions?
Why not provide the substitution avenue to Manufacturer X? Get a head-to-head comparison to determine equivalence.
Is this a public agency situation where there are laws or regulations which govern? If not, can't the Owner decide with whom it is willing to do business? |
ken hercenberg
Senior Member
Username: khercenberg
Post Number: 714
Registered: 12-2006
| | Posted on Tuesday, February 18, 2014 - 09:32 pm: | |
That's why I'm asking what method of specifying was used. If it's a closed proprietary spec and you specify Product A by Manufacturer X, if they submitted Product B, supposedly by the same manufacturer, this would not seem to be compliant.
If you included salient features, does the submitted product comply?
Based on the GM analogy, if you specify a Caddy, Model ELR and they submitted the Model CTS, that's a big difference. They're both Caddys but they're not the same.
Years ago a major urethane sealant manufacturer bought a competitor with some arguably better products. The purchaser discontinued some products and renamed others from both product lines. There was a lot of confusion and, as it turned out, some products were no longer the same as the earlier products by the same name. Based on ASTM C920, the material properties met spec for elongation but the harder to describe features such as ease of usability, adhesion to certain surfaces, and the ability to skip using primers in some situations, had changed. Specifications already out on the street were complied with in name but not necessarily in reality. A lot of people were upset including Owners, Architects, and Installers. By definition, the products met spec. In reality, they didn't. Recourse? This was a situation that the Owner could not reasonably expect the A/E to protect him from. If he wanted to bar the new products by the same name, he had to pay a premium to use a different product. It wasn't the A/E's fault. It wasn't the GC's fault. It was something out of everyone's control on the project. The GC proceeded in good faith, believing he was following the spec. |
John Regener, AIA, CCS, CCCA, CSI, SCIP
Senior Member
Username: john_regener
Post Number: 682
Registered: 04-2002
| | Posted on Wednesday, February 19, 2014 - 03:48 am: | |
Ken: What's your complaint?
Just because you ordered a Cadillac CTS and got a Chevy Cruze, there shouldn't be a problem. Don't they both have blackwall tires and go 65 mph? Don't they both carry 4 passengers and have automatic transmissions? The Cruze even has the advantage that it fits in small parking spaces better.
Don't you admire clever spec interpretations? After all, the Owner is probably saving some money. Accept the submitted product. After all, which would you rather have: a reputation for getting along with Contractors or obsessing over quality? Or being committed to following through on quality in the design?
If the Owner (or Construction Manager) insists on accepting the non-conforming product, at least execute a Change Order which the Owner and Contractor sign off on. |
Ronald L. Geren, FCSI, AIA, CCS, CCCA, SCIP
Senior Member
Username: specman
Post Number: 1188
Registered: 03-2003
| | Posted on Wednesday, February 19, 2014 - 09:38 am: | |
Ken:
The specification listed three approved manufacturers, of which Manufacturer X was included and Manufacturer Y was not. Specific models by the approved manufacturers were not specified.
This is a public institution, so three manufacturers were required to be listed.
On a head-to-head comparison, the product from Manufacturer Y might (I haven't checked yet) meet the requirements in the specification, but there's more to product selection than the product itself.
I don't know the specific history between Manufacturer Y and the owner, and why the owner dislikes Manufacturer Y, but it is difficult to know if the specific issues have been resolved as a result of the acquisition.
I think it was disingenuous of Manufacturer X to submit Manufacturer Y's former product.
Ron Geren, FCSI, AIA, CCS, CCCA, SCIP
www.specsandcodes.com |
Robin E. Snyder
Senior Member
Username: robin
Post Number: 506
Registered: 08-2004
| | Posted on Wednesday, February 19, 2014 - 09:52 am: | |
Ron: It's difficult to know exactly how the business is operating, but I think a "division" is still part of the same legal entity as the parent company. If Manufacturer X was listed as an approved manufacturer and they bought out Man Y, then, technically, they are following the spec. I don't do a lot of public work, so I don't know...on a public project, can the Owner outright prohibit a specific manufacturer? It sounds like that would be opening a can of worms. I would try to find out more about why the Owner didn't want that product. If they were involved in a product failure, that gives different weight than if the Owner's had a bar fight with the sales rep. |
Ronald L. Geren, FCSI, AIA, CCS, CCCA, SCIP
Senior Member
Username: specman
Post Number: 1189
Registered: 03-2003
| | Posted on Wednesday, February 19, 2014 - 10:27 am: | |
Robin:
Actually, a larger company (Parent Company) owns Manufacturer X and that Parent Company bought Manufacturer Y. I don't know if the Parent Company kept Manufacturer Y as a separate entity or if they absorbed Manufacturer Y into Manufacturer X's company--I looked through the Parent Company's annual report and there's no indication one way or the other.
Personally, I think that there was a strategic reason behind the acquisition of Manufacturer Y. Manufacturer X's product, while being very good, is also very expensive; thus, they were losing out to other comparable manufacturers with less expensive products. Therefore, they purchase Manufacturer Y (a lower cost alternative) in order to get into projects, but doing so by using Manufacturer X's reputation. This is pure speculation on my part--I have no facts other than this project that is now before me. Would Manufacturer X be used on the project if Manufacturer X's own products were used? Probably not, because of their cost.
Ron Geren, FCSI, AIA, CCS, CCCA, SCIP
www.specsandcodes.com |
J. Peter Jordan
Senior Member
Username: jpjordan
Post Number: 678
Registered: 05-2004
| | Posted on Wednesday, February 19, 2014 - 11:42 am: | |
This has become commone since the start of the last recession, the acquisition of Temple Inland by G-P and Glidden by PPG (after Akzo Nobel had acquired ICI including the Glidden brand). Interior designers still don't understand that Devoe is no longer a decorative paint line, but has become largely a high performance coatings line.
This is complicate by the supply chain that includes manufacturers, distributors, subcontractors, and contractors. This may be complicated by who does the product representation (manufacturer's employee? independent rep? distributor's employee?). Sometimes, the "product problem" is not with the product itself (although it may very well be), but representation, distribution, or application. What is a perfectly good product that everyone is happy with in one location may have a terrible reputation in another location simply doesn't have anything to do with the product as manufactured, but the distributor is consistently out of stock (maybe he distributes other stuff he makes more money on), the product rep is a yo-yo, or the local subs simply don't know how to do the execution. It may even be a problem with the contractor who doesn't want to use it for some reason.
You might want to find out why the Owner doesn't like this particular product. It may very well be that it isn't the product, and that some of the objections that were previously valid have gone away. |
Ronald L. Geren, FCSI, AIA, CCS, CCCA, SCIP
Senior Member
Username: specman
Post Number: 1190
Registered: 03-2003
| | Posted on Wednesday, February 19, 2014 - 12:04 pm: | |
Here's the scoop on the problem: the owner had Manufacturer Y's product installed on a similar previous project and the product performed poorly.
The question is, has Manufacturer X (or its parent company) improved the former Manufacturer Y's product? If not, the owner would be justified in rejecting the submittal. If they did improve it, then I think the owner would be justified in requesting testing of the "improved" product to verified that it has been improved.
Ron Geren, FCSI, AIA, CCS, CCCA, SCIP
www.specsandcodes.com |
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