Accepting substitutions without my co...

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Author Message David G. Axt, CCS, CSI ,SCIP Senior Member Username: david_axt Post Number: 1771 Registered: 03-2002 Posted on Tuesday, April 23, 2019 - 04:07 pm:    I am currently working on putting together conformed specifications for an architect. In reviewing the addenda I have noticed they have approved products that I would not have allowed. Sometimes the approved products are not even the same material as the specified products. I am considering telling the architect that they can reject as many products as they want but before they approve anything to run it past me. David G. Axt, CCS, CSI, SCIP Specifications Consultant Axt Consulting LLC David R. Combs, Assoc. AIA, CSI, CCCA, LEED AP Senior Member Username: davidc Post Number: 11 Registered: 02-2015 Posted on Tuesday, April 23, 2019 - 06:57 pm:    David, First off, who signed and sealed the documents? If the architect (client) did, then they assume all liability for the content, including their approval of changes thereto. It is truly unfortunate that many architects do not understand or appreciate the role of specifier as advisor, but instead just a word document editor. I strongly believe they do so at their own peril. Maybe - in your case - there's more to the story that you weren't privy to, and the architect felt making the change was warranted. Nonetheless, it doesn't excuse not at least having had the discussion. If the architect's decision proves to be faulty, I'd hate to be that person when the plaintiff's attorney or expert witness weighs in. I would suspect they could (and would) make the case that not consulting with the specifier prior to rendering a decision was ill-informed at best (maybe even ego-driven), and negligent at worst, and therefore did not meet the normal and customary standard of care. When one must open their wallet under such circumstances, they get to learn a painful lesson the hard way. David R. Combs, Assoc. AIA, CSI, CCCA, LEED AP Associate Principal Technical Director David G. Axt, CCS, CSI ,SCIP Senior Member Username: david_axt Post Number: 1772 Registered: 03-2002 Posted on Tuesday, April 23, 2019 - 07:28 pm:    I agree. By accepting substitutions and not informing me until all addenda were issued, I am absolved of any liability that may arise from their approved product. I am just putting together a conformed set per their direction and thus just acting as a word processor. That said I sure wish they would have run some of their proposed approved products past me first. I try to include all acceptable products/manufacturers in my specifications. If a product/manufacturer is left out there is usually a good reason. David G. Axt, CCS, CSI, SCIP Specifications Consultant Axt Consulting LLC Guest (Unregistered Guest) Unregistered guest Posted on Tuesday, April 23, 2019 - 05:21 pm:    The Architect has the liability for the selection and approval of all products ... why would you want that responsibility and associated liability? Michael Chusid, RA FCSI CCS Senior Member Username: michael_chusid Post Number: 481 Registered: 10-2003 Posted on Tuesday, April 23, 2019 - 08:18 pm:    David: 1. What is a confirmed spec? 2. Should you send a letter to customer stating that the product in addenda was not reviewed by you? (If you do so and you miss a change, that will be the one you did not disclaim and your failure to do so could be argued as an acceptance.) 3. In terms of your relationship with customer, how is an addendum issued without consulting you different than a change order issued without consulting you? Michael Chusid, RA FCSI CCS 1-818-219-4937 www.chusid.com www.buildingproduct.guru David G. Axt, CCS, CSI ,SCIP Senior Member Username: david_axt Post Number: 1773 Registered: 03-2002 Posted on Tuesday, April 23, 2019 - 09:58 pm:    Michael: 1. "Conformed Documents means Contract Documents with all Addenda items and accepted Alternates incorporated by the A/E, published, and issued to a successful Bidder for its use during performance of its Contract." FYI, they are issued for Contractor's convenience and are NOT Contract Documents. Any discrepancy between Conformed and Bid (Contract) Documents, the Bid (Contract) Documents take precedence. 2. I will send some sort of letter. The deadline has past so I (they) could not make a change unless it is a Change Order. 3. Any changes to my work without my authorization is their issue and liability. David G. Axt, CCS, CSI, SCIP Specifications Consultant Axt Consulting LLC David G. Axt, CCS, CSI ,SCIP Senior Member Username: david_axt Post Number: 1774 Registered: 03-2002 Posted on Tuesday, April 23, 2019 - 10:04 pm:    Guest: It is my experience that architects only select products that are seen. I specify all the hidden stuff. For example, I have never had an architect choose or complain about my selection of waterproof/crack isolation membrane for tile. On the other hand, they always select the tile and grout. Architects rely on my experience and professional judgement for selection of many materials. Sometimes they will even ask me what I think of a certain product or if I have had experience with a certain manufacturer. If architects selected all the products than I truly would be just a spec typist/formatter. David G. Axt, CCS, CSI, SCIP Specifications Consultant Axt Consulting LLC David J. Wyatt, CDT Senior Member Username: david_j_wyatt_cdt Post Number: 296 Registered: 03-2011 Posted on Wednesday, April 24, 2019 - 06:51 am:    David Axt, the difference between the products and systems that are "seen" vs those that are concealed is an interesting idea and quite true. The concealed items are usually the safety net or last line of defense against a costly failure. This is why there are specifiers. I am glad you brought this to light. Jeffrey Wilson CSI CCS SCIP Senior Member Username: wilsonconsulting Post Number: 282 Registered: 03-2006 Posted on Wednesday, April 24, 2019 - 08:56 am:    I make the lines of liability very clear in my consulting work: The architect retains responsibility for product selections -- period. Advice during bidding & construction is of course always available, and I encourage feedback that helps build "lessons learned" for future projects, but my clients have no obligation to consult me on any decisions. In practice, certain incidental choices fall to me, and clients of course rely on me to inform them of options and considerations as the specs are developed. If you prefer to be involved in those decisions, this should be communicated to clients, and perhaps addressed in your agreements. It might take a while to get them in the habit of looping you in, but it would be worth the effort to educate them if that's your preferred approach (and you're comfortable accepting the liability). Jeffrey Wilson CCS CSI SCIP Wilson Consulting Inc Ardmore PA Guest (Unregistered Guest) Unregistered guest Posted on Wednesday, April 24, 2019 - 11:32 am:    David, I think you missed the point of my statement ... the architect has the liability for selection and approval of all products (full stop). Does your standard agreement include language clarifying the intent that the architect is only responsible for the stuff that is seen, and that you will take responsibility for those products which are hidden? Does your insurer understand that you are taking this responsibility upon yourself to design the hidden aspects of the building? Does this now constitute the practice of architecture where you are in effect acting as the architect of all the hidden stuff? Offering your advice and opinion on products is most likely part of the services that your clients should expect. However, that should not be confused with the responsibility for product selection. I'm not saying you need to present all the hidden stuff to your clients individually and get them to sign off on it. Rather, they are the licensed professional exercising responsible control over your work. You should give them ample opportunity to review and make corrections to your work. By accepting your work, they are accepting your selections of the hidden stuff and they are accepting responsibility for it. Conversely, that means that if they want to approve a substitution without your consent, they have all the right in the world to do that for both seen and hidden work. Yes, they may not be using your expertise to full extent, but they have the ability to choose that. You shouldn't feel like you need to force the issue with a letter or anything like that. Your point #3 above reflects that, "Any changes to [your] work without [your] authorization is their issue and liability." ken hercenberg Senior Member Username: khercenberg Post Number: 1221 Registered: 12-2006 Posted on Wednesday, April 24, 2019 - 02:04 pm:    Do you include a substitution request form? The one I've been using for years was, I believe, modified from a CSI form that Bob Johnson introduced me to. I'd be happy to share it. One of the primary statements on the form is that the Architect's action is that of advising the Owner to accept or reject the request. The ultimate decision belongs to the Owner. Having said that, my understanding is that when an Architect suggests approval, liability is equivalent to writing the selection into the Contract Documents. An Architect who approves or recommends approval of a product without checking with someone who understands why the selection was made is self-defeating at best. Dewayne Dean Senior Member Username: ddean Post Number: 194 Registered: 02-2016 Posted on Wednesday, April 24, 2019 - 03:32 pm:    Ken, I would like a copy of your substitution form. dewayne at nwlarchitects .com Thanks Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 876 Registered: 10-2007 Posted on Wednesday, April 24, 2019 - 03:59 pm:    Yes the Architect should consult with the person who wrote the specifications but the individual signing the drawings does not have to. I do not see how the specification writer would have professional liability. Give me cases. More importantly there is the question as to the role of the specification writer in developing the technical content of the specifications. I recognize that the specification writer may have some technical knowledge regarding what is in the specifications but I will suggest that this knowledge is often limited in scope even if the specification writer does not recognize it. This is supported by the observation that specification writers often present to the structural engineer concrete and steel office master specifications that are totally inadequate. Rather than commenting on the adequacy of these sections I have substituted a more appropriate specification section. While this strategy minimizes controversy on the project it means that the Architect and the specification writer are denied feedback. I understand there is a problem with some structural engineers not understanding construction specifications but that is a separate problem. I believe the prime design professional should identify who is responsible for the technical scope of each specification section and if that individual is not the design professional signing the documents related to that work the prime should evaluate the expertise of the individual. The person responsible for the technical content should be actively involved with the writing of the specification.