Substitution Requests Prior to Bid

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Author Message Robin E. Snyder Senior Member Username: robin Post Number: 778 Registered: 08-2004 Posted on Tuesday, July 16, 2019 - 11:29 am:    Let me preface this by saying that 99.5% of my work is private, with no Division 00 or bidding process, so i am not as familiar with public projects and the bidding substitution request process. My question to you all is: Do you ever see substitution requests during this phase that come directly from the manufacturer. I would assume they need to come from the GC, but wanted to make sure I am not unaware of something that might be acceptable in public work. As an architect/specifier, what would be your response to a manufacturer who submits a request for substitution during procurement directly to you? Marc Chavez Senior Member Username: mchavez Post Number: 497 Registered: 07-2002 Posted on Tuesday, July 16, 2019 - 11:47 am:    during bidding I will receive from manuf. distributors, subs and the GC. after the bid period is done and the contract awarded...then only from the GC Ronald L. Geren, FCSI Lifetime Member, AIA, CCS, CCCA, CSC, SCIP Senior Member Username: specman Post Number: 1555 Registered: 03-2003 Posted on Tuesday, July 16, 2019 - 11:48 am:    When I know a project is going out for public bid, I always recommend to my clients to accept substitution requests only from GC bidders. You don't want to spend time reviewing a substitution for a product that no bidding GC will ever potentially use. Ron Geren, FCSI Lifetime Member, AIA, CCS, CCCA, CSC, SCIP Dave Metzger Senior Member Username: davemetzger Post Number: 752 Registered: 07-2001 Posted on Tuesday, July 16, 2019 - 11:59 am:    What do the Instructions to Bidders state regarding substitution requests during bidding? Jeffrey Wilson CSI CCS SCIP Senior Member Username: wilsonconsulting Post Number: 297 Registered: 03-2006 Posted on Tuesday, July 16, 2019 - 12:02 pm:    This is likely governed by regulations -- or at least conventional practices -- of the jurisdiction w/ authority over the procurement process. Whether or not substitutions will be considered before bid opening or contract award, and the process for proposing them, would optimally be addressed in the instructions to bidders or similar procurement information (according to the Uniform Location of Subject Matter -- a handy document). Jeffrey Wilson CCS CSI SCIP Wilson Consulting Inc Ardmore PA David G. Axt, CCS, CSI ,SCIP Senior Member Username: david_axt Post Number: 1808 Registered: 03-2002 Posted on Tuesday, July 16, 2019 - 12:18 pm:    On the public projects I work on, substitutions are allowed up to a certain number of days before the bid. This allows the design team time to evaluate the substitution. If accepted the manufacturer/product is published in the addenda. This makes other bidders aware of another product that they can use/bid. I do a lot of work filling my specifications with quality, locally available, good track record products. That said I discourage acceptance of substitutions. My motto is "Guilty until proven innocent." A partner at a firm I worked for used to rightfully say, "When in doubt, throw it out." Even though we allow ourselves time to review substitutions we rarely have the time to do a thorough review since we are busy with other tasks. I have told product representatives that I will reject them for this project but spend some time with me and maybe I can get you into the next project. (Lose battle/win war). I am surprised how few reps took me up on the procedure. Usually they just fade away and are never heard from again. David G. Axt, CCS, CSI, SCIP Specifications Consultant Axt Consulting LLC Robin E. Snyder Senior Member Username: robin Post Number: 779 Registered: 08-2004 Posted on Tuesday, July 16, 2019 - 12:18 pm:    Substitutions are permitted by the "bidder". So, my original question is, do you ever see manufacturer's circumventing the process and submitting the forms directly to the architect? If so, what would be your response to the manufacturer? I have my initial thoughts, but since i don't deal w/ the public realm, i wanted some "real life" input Robin E. Snyder Senior Member Username: robin Post Number: 780 Registered: 08-2004 Posted on Tuesday, July 16, 2019 - 12:21 pm:    My question isn't about whether substitutions should be accepted or not, or whether they are permitted (they are), but rather, whether it is acceptable for the manufacturer to submit them directly to the Architect. Jeffrey Wilson CSI CCS SCIP Senior Member Username: wilsonconsulting Post Number: 298 Registered: 03-2006 Posted on Tuesday, July 16, 2019 - 12:29 pm:    It depends on the stated requirements. If they say "bidder" then I would definitely take the position of rejecting a request coming directly from a manufacturer. That term could be vague unless it is clearly defined in the documents, but the intention is presumably that it refers to an entity submitting a bid to the contracting agency -- not to sub-bidders who will bid to prime bidder(s). Jeffrey Wilson CCS CSI SCIP Wilson Consulting Inc Ardmore PA anon (Unregistered Guest) Unregistered guest Posted on Tuesday, July 16, 2019 - 12:47 pm:    Robin, what you are experiencing was something that I really struggled with for years for the public bid projects I worked on (like you, most of the stuff I worked on was private, but the firm I worked for did a fair amount of public bid work for the US Gov, universities, etc. - so I did have to deal with this). Yes, manufacturers often circumvent the bidders and submit (publicly available) substitution request forms directly to the architect. I got tired of trying to justify to the poor architect reasons why a rejection was best course of action. And so I developed a couple of spec sections to address substitutions during bidding (which is separate and different from substitutions AFTER bidding - but very few Project Manuals or instructions to bidders address this at all!!!). The spec sections I developed for this include: SECTION 00 2600 - PROCUREMENT SUBSTITUTION PROCEDURES SECTION 00 2601 PROCUREMENT SUBSTITUTION REQUEST FORM Here's the key paragraph in the Procedures section under 1.X DEFINITIONS: A. Bidder: Entity or individual authorized to submit a bid in accordance with the Bidding Documents with the intention and ability to enter into an agreement with the Owner to perform the Work. And every instruction in these sections is addressed to the Bidder, and with that, the Architect has what she needs to deny/reject substitution requests that come from any other party. Even with this the project teams got lots of stuff directly from manufacturers, local reps, vendors, etc. But it was easy and simple for Architect to deny/reject with this language in place in the Project Manual. David R. Combs, Assoc. AIA, CSI, CCCA, LEED AP Senior Member Username: davidc Post Number: 14 Registered: 02-2015 Posted on Tuesday, July 16, 2019 - 01:10 pm:    Robin, In our Instructions to Bidders, we include the following language: . 1. Manufacturers, manufacturer's representatives, dealers, distributors, suppliers, and subcontractors shall not direct or make requests to substitute equipment or materials. All requests shall originate from a Prime Bidder, and shall be submitted on the Substitution Request Form included at the end of Document 00 26 00. . 2. Substitutions shall be submitted to the Architect only; no substitutions shall be submitted directly to any consultant, the Owner, or any of the Owner’s consultants. . . If the Instructions to Bidders is silent on the subject of who can submit, it very much opens the door for substitutions to originate from a myriad of sources. It likewise makes it difficult to reject substitutions that originate from other than the Prime Bidder, since there's no violation or basis for rejection in the Instructions to Bidders. . The other point is that if a manufacturer or supplier seeks and is granted approval of their substitution request, the GC may never know until it's too late, since the manufacturer's / supplier's price only goes to the Subcontractor. The Sub ends up being the low bidder for that item of work, gets awarded the subcontract, only for the GC to discover that the proposed (and approved) substitution is not compatible with some other adjacent item of work that was awarded to someone else, (and of which the first sub was not made aware). The GC is ultimately responsible for the Work and to correct the problem, or worse - throws the architect under the bus for not reviewing for compatibility and therefore creating the confusion in the first place. SO not worth the hassle. . Hope this helps. David R. Combs, Assoc. AIA, CSI, CCCA, LEED AP Perkins+Will Associate Principal Technical Director Dan Helphrey Senior Member Username: dbhelphrey Post Number: 28 Registered: 12-2018 Posted on Tuesday, July 16, 2019 - 01:10 pm:    The answer to your question can only be found in the Contract Documents for your Project. What is "typical" makes no difference at all if your docs say something different. Ronald L. Geren, FCSI Lifetime Member, AIA, CCS, CCCA, CSC, SCIP Senior Member Username: specman Post Number: 1556 Registered: 03-2003 Posted on Tuesday, July 16, 2019 - 01:32 pm:    From AIA Document A701-2018: 1.4 A Bid is a complete and properly executed proposal to do the Work for the sums stipulated therein, submitted in accordance with the Bidding Documents. 1.8 A Bidder is a person or entity who submits a Bid and who meets the requirements set forth in the Bidding Documents. 1.9 A Sub-bidder is a person or entity who submits a bid to a Bidder for materilas, equipment, or labor for a portion of the Work. 3.3.2.2 Bidders shall submit substitution requests on a Substitution Request Form if one is provided in the Bidding Documents. So, if AIA documents are used, it appears only "Bidders" can submit a substitution request. Ron Geren, FCSI Lifetime Member, AIA, CCS, CCCA, CSC, SCIP Robin E. Snyder Senior Member Username: robin Post Number: 781 Registered: 08-2004 Posted on Tuesday, July 16, 2019 - 01:37 pm:    Thanks everyone. Pretty much as i suspected. My friend's boss (manufacturer) is trying to get him to submit a substitution request form to the architect and i advised against it. Just wanted to make sure things weren't different in the public realm and also wanted to give him some ammunition to explain things to his boss Dan Helphrey Senior Member Username: dbhelphrey Post Number: 29 Registered: 12-2018 Posted on Tuesday, July 16, 2019 - 01:41 pm:    Your friend should be able to get a planholders list from the architect or CM, and can then submit their product to all of the planholders. David J. Wyatt, CDT Senior Member Username: david_j_wyatt_cdt Post Number: 303 Registered: 03-2011 Posted on Tuesday, July 16, 2019 - 01:57 pm:    The bidding requirements are the owner's purview. And, most standard forms of agreement between owner and architect contain a provision that the architect will receive and evaluate substitution proposals. I have never seen one that says how many. Public owner entities usually have have clear provisions for substitutions. I have not seen any that limit who can submit them. And I can safely say that all of the owners, public or private, with whom I have ever worked were interested in saving money and never gave a thought about how busy the architect might be. My only escape hatch is the completeness of the submittal. If it is not sufficiently complete for reasonable evaluation, nothing says I have to hunt down the submitter to get more information. Until a contract is awarded, a manufacturer may have no idea which "prime" bidders intend to actually submit bids for a project. Often, official bid lists are not complete. As long as substitution requests are properly submitted within the established time limits, I see no good reason other than the architect's convenience why they should be treated without appropriate evaluation. After a contract is awarded, it is another story. Especially in public projects, accepting a substitution following award can cause a little trouble. I include Division 01 language that says substitutions following award of contract will not be considered unless 1) the specified products are not manufactured any longer; 2) the specified products will not function in the applications indicated; or 3) the AHJ imposes additional project requirements that demand a change in design. These conditions are rare, but they occur often enough to merit some consideration. Of course, the private sector owner can do whatever it wants, whenever it wants, having nothing to lose but its reputation. John Bunzick, CCS, CCCA, LEED AP Senior Member Username: bunzick Post Number: 1789 Registered: 03-2002 Posted on Tuesday, July 16, 2019 - 03:58 pm:    Massachusetts bidding laws do not require that substitution requests be considered, although it is common practice to do so because it may benefit the owner. However, the law does require that there be at least three viable products that can be used, normally satisfied by listing the three. (The awarding authority can override that, in advance, for limited public purposes.) Most of the posters here are on the right track by referring to the bidding requirements to make the determination. In the various firms I worked for, manufacturer- or distributor-generated substitutions were never accepted whether public or private. Pre-bid substitutions were also never accepted because there was never enough time to properly evaluate the request, particularly on technically complex products (which seemed to be the only type that ever had substitution requests). David J. Wyatt, CDT Senior Member Username: david_j_wyatt_cdt Post Number: 304 Registered: 03-2011 Posted on Wednesday, July 17, 2019 - 08:17 am:    A mistake I often see in documents is the misplacement of bidding requirements in Division 01 Sections. A/Es should understand that the rules governing substitutions pre-bid and post-award are different. Each has its place in the project manual. Robin E. Snyder Senior Member Username: robin Post Number: 782 Registered: 08-2004 Posted on Wednesday, July 17, 2019 - 05:34 pm:    UPDATE: Despite my friend informing his company that they shouldn't be submitting directly to the architect, they maintain this is the way to do it and that numerous architects have approved their requests for substitution during bidding. So, i guess the reality is, we can beat the "follow the instructions" drum all we want, but it doesn't really matter what the documents say Marc Chavez Senior Member Username: mchavez Post Number: 498 Registered: 07-2002 Posted on Wednesday, July 17, 2019 - 05:43 pm:    YEP, many manuf. tell me that the contractor will not listen to them if they are not in the spec. In many cases it's no big deal the product is ok etc. so I'll add them to that addenda. done. Now in some cases the product is NOT want I want and I will NOT grant the substitution. Robin E. Snyder Senior Member Username: robin Post Number: 783 Registered: 08-2004 Posted on Wednesday, July 17, 2019 - 05:45 pm:    Marc; When a manufacturer' submits, do they submit the substitution request form that requires signature by the contractor? And, just sign it as the manufacturer? Marc Chavez Senior Member Username: mchavez Post Number: 499 Registered: 07-2002 Posted on Wednesday, July 17, 2019 - 05:49 pm:    usu I handle it as if i were adding it to the spec myself. so no form. and yes I'm taking the responsibility for adding it. yes yes I know it is not per the rules but that is life...also if it is way too close to publishing it may simply be too late, "sorry too late to add you." because it is MY time and MY responsibility etc. Dan Helphrey Senior Member Username: dbhelphrey Post Number: 30 Registered: 12-2018 Posted on Wednesday, July 17, 2019 - 06:18 pm:    Having spent most of my career working for public clients in a highly litigious environment (Southern California), I automatically reject substitutions if they haven't crossed every "t" and dotted every "i," before I even start actually evaluating the products - anything else could lead to an accusation of giving some bidders preferential treatment. David G. Axt, CCS, CSI ,SCIP Senior Member Username: david_axt Post Number: 1809 Registered: 03-2002 Posted on Wednesday, July 17, 2019 - 07:27 pm:    Not to derail the topic here ......but what the heck. Everyone loves a good story. I once had a manufacturer fax (remember those?) a substitution request for asphalt shingles for a project I was helping with CA. I poured over the specifications and drawings and could not find asphalt shingles. Thinking that I missed something when I wrote the specifications and finally went to the project architect sheepishly asking where the asphalt shingles were located on the project. He gave me a puzzled look as said there were no asphalt shingles on the project. I figure there was some person in a cubicle whose sole job was to fax substitution requests to every job listed in the Dodge Reports. I was SO tempted to accept the substitution just to see what would happen. Would the roofer actually try to put asphalt shingles on a flat roof? David G. Axt, CCS, CSI, SCIP Specifications Consultant Axt Consulting LLC Dan Helphrey Senior Member Username: dbhelphrey Post Number: 31 Registered: 12-2018 Posted on Wednesday, July 17, 2019 - 07:46 pm:    An architect I worked for early in my career approved Andersen Windows - on a job with all aluminum storefront. David J. Wyatt, CDT Senior Member Username: david_j_wyatt_cdt Post Number: 305 Registered: 03-2011 Posted on Thursday, July 18, 2019 - 09:06 am:    David Axt, I recall a period of time when I regularly received such substitution requests, very thorough and properly done, from a national manufacturer of asphalt shingle roofing. The requests came no matter what the scope of the project was. Once I received one for an interior renovation. I will not name names, but the manufacturer was a subsidiary of a company that also made photography products and Henry Fonda was its spokesman. The requests were so well put together that I used them as examples of how to prepare them correctly. J. Peter Jordan Senior Member Username: jpjordan Post Number: 1098 Registered: 05-2004 Posted on Thursday, July 18, 2019 - 09:40 am:    I have occasionally run into situations where it appears that the marketing strategy of the manufacturer is based solely on making substitution requests. When I have the chance to talk to them and invite them to come in to present their products to my firm, I don't hear from them until the next substitutioni request. Reject! J. Peter Jordan, FCSI, AIA, CCS, LEED AP, SCIP David G. Axt, CCS, CSI ,SCIP Senior Member Username: david_axt Post Number: 1810 Registered: 03-2002 Posted on Thursday, July 18, 2019 - 11:53 am:    I believe the strategy of the manufacturer is to submit their substitution when there is little time to review in hope that some inexperience intern will rubber stamp it approved. I have also seen where the manufacture goes directly to the owner to get approval. The owner then told the architect to put it in the addedum as approved. The architect then told the owner that since the owner approved the substitution the owner would take full responsibility for any issues that arose. The architect also said they would only do a cursory review the submittal (basically for size, shape, and color) if the product were to get in the project. David G. Axt, CCS, CSI, SCIP Specifications Consultant Axt Consulting LLC Guest (Unregistered Guest) Unregistered guest Posted on Friday, July 19, 2019 - 01:45 pm:    The last rep that went to the owner behind our backs, has yet to return to our office.