Unacceptable manufacturers?

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Author Message David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 393 Registered: 03-2002 Posted on Tuesday, December 21, 2004 - 06:04 pm:    Is okay to specify manufacturers that are not acceptable? Occassionally we have a need to specify a manufacturer that is not approved. Partly this is to reduce the number of substitution requests. I don't plan on specifying all the products not approved, just the ones we typically always get. Any problems with this procedure? Lynn Javoroski Senior Member Username: lynn_javoroski Post Number: 172 Registered: 07-2002 Posted on Tuesday, December 21, 2004 - 06:14 pm:    I'm not clear on why you would specify an unacceptable product/manufacturer. Is it unapproved or unacceptable? Marc C Chavez Senior Member Username: mchavez Post Number: 53 Registered: 07-2002 Posted on Tuesday, December 21, 2004 - 07:50 pm:    David, I lov ya, but, sometimes you take a point to far. If you were to ask if you should allow in manufacturers whom you don't like but provide an acceptable product, the answer should be yes (prejudice being a bad thing) but. . . "Cool is a rule but sometimes bad is bad!" David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 394 Registered: 03-2002 Posted on Tuesday, December 21, 2004 - 08:39 pm:    Maybe I am not being clear. For example, we alway specify Sargent, Schlage, Corbin Russwin, and sometimes Best and Yale. We don't want Falcon, Arrow, Quikset or Weiser. What would be wrong with listing those manufacturers as unacceptable? The strategy is save both the rep, distributor, GC and architect a lot of time reviewing a substitution request that is going to be rejected anyway. Marc C Chavez Senior Member Username: mchavez Post Number: 54 Registered: 07-2002 Posted on Tuesday, December 21, 2004 - 08:44 pm:    OH! You mean 2.2 UNACCEPTABLE MANUFACTURERS A. Falcon B. Arrow for example. Yes why not. Richard L. Hird P.E. CCS Senior Member Username: dick_hird Post Number: 14 Registered: 02-2004 Posted on Tuesday, December 21, 2004 - 09:36 pm:    David: You proposal creates three categories: 1.Who you want 2.Who you don't want 3.Everybody else (Those that are not mentioned and whose acceptability is totally unclear) If you list only Acceptable Manufacturers throughout your spec you have only two categories 1. Who you want 2. Everybody else (Who you don't want) Binary systems are much clearer to people as well as computers. Ron Beard CCS Senior Member Username: rm_beard_ccs Post Number: 43 Registered: 10-2002 Posted on Tuesday, December 21, 2004 - 10:20 pm:    Specifying that a certain manufacturer is not acceptable can be construed to be a slam against their products which could result in a negative impact on the architectural firm and the specifier - not to mention the potential for a sticky situation for the Owner having to defend the actions of his design team. It seems to me that the specifier should use one of the manufacturer rep‘s tricks - but in reverse. Most of us have seen them try to get us to use terminology or performance criteria in our specs that would make their product the only one complying with the spec. We can eliminate what we consider unacceptable products by reversing the manufacturer rep's process. Write the section such as to identify what is "not acceptable;" ie, wall covering with red balloons, perm ratings higher than X, compressive strengths less than Y, etc. Select the unacceptable criteria based on what your "unacceptable" manufacturer's product has without specifying the manufacturer by name. Just a thought. Ron Joanne Rodriguez, CSI, CDT, LEED AP Senior Member Username: joanne Post Number: 9 Registered: 09-2004 Posted on Tuesday, December 21, 2004 - 10:31 pm:    Why don't you make "substitutions" unacceptable? I not a specifier, but I work with plenty who do not allow substitutions. D. Marshall Fryer Senior Member Username: dmfryer Post Number: 44 Registered: 09-2003 Posted on Wednesday, December 22, 2004 - 08:32 am:    I am concerned that listing "unacceptable manufacturers" without clear evidence of their product's inferiority, might open the Architect and/or Owner up to legal action for defamation. Russell W. Wood, CSI, CCS Senior Member Username: woodr5678 Post Number: 25 Registered: 11-2003 Posted on Wednesday, December 22, 2004 - 08:53 am:    Interesting concept.....when you go to a restaurant do you order what you want or what you don't want? Do you tell the waiter you'll consider substitutions? George A. Everding, AIA, CCS, CSI Senior Member Username: geverding Post Number: 8 Registered: 11-2004 Posted on Wednesday, December 22, 2004 - 09:25 am:    Interesting. This discussion about “Open Proprietary” vs. “Closed Proprietary” specifying has a seasonal twist. I agree with Richard. Keep it to two groups only: those you know and approve of, and all others are disapproved. So what about the third group, those you don’t know or haven’t evaluated yet? You will not accept them on the current project, but they can come visit you later and convince you that they belong on the “Nice” list, and not the “Naughty” list. Then, next Christmas …er… next Project, if they have been good little boys or girls, they will find their name listed in your project manual under the tree. Ho! Ho! Ho! David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 395 Registered: 03-2002 Posted on Wednesday, December 22, 2004 - 02:28 pm:    I have listed the products we want and then listed the statement “No substitutions”. This procedure tends stifle innovation and creativity. Think of it this way. You get together with spouse or friends to discuss seeing a movie. First you tell them the movies that you want to see. Then you tell them the movies that you do NOT want to see. After comparing lists, someone suggests a movie that is not on either the see or no see list. You then have to evaluate whether the movie sounds interesting enough to see. Same procedure goes with products. Our office has a listing in our masters of products we want to see in our projects. So why not list those we don't want to see and allow the contractor to propose substitutions for those not on either list? Anne Whitacre, CCS CSI Senior Member Username: awhitacre Post Number: 149 Registered: 07-2002 Posted on Wednesday, December 22, 2004 - 03:49 pm:    David: yes, listing "who you don't want" can be considered restraint of trade and defamation, which is precisely why we don't do that as a practice. If you have legitimate reasons to not use them, that is part of the substitution process, and a "smart rep" will know not to bother you anyway. But no -- you can't list "unacceptable" suppliers and it would be a crass, impolite and bad thing to do. John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 298 Registered: 03-2002 Posted on Wednesday, December 22, 2004 - 04:04 pm:    I want to reemphasize Marshall Fryer's comment about the potential for defamation. As it is, a few manufacturers play very rough with designers who specify proprietary products. If a company was listed as "not acceptable", there is a definite possibility of a defamation law suit. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 396 Registered: 03-2002 Posted on Wednesday, December 22, 2004 - 06:03 pm:    I don't understand. How is listing 3 manufacturer's and saying No Substititions, not also restraint of trade? How is saying, "Electro galvanized nails not acceptable." or "Polyurethane sealants not acceptable." or "Type 6,6 nylon fiber not acceptable." also not restraint of trade? I am not trying to blacklist anybody, just clearly identify what I want and what I don't want. Marc C Chavez Senior Member Username: mchavez Post Number: 55 Registered: 07-2002 Posted on Wednesday, December 22, 2004 - 07:02 pm:    There is a difference between "I want no concrete plank siding." and I want no James Hardie Siding. One appears non judgmental. I have simply made a choice of material. The other mentions a company and implies that I don't want them. In reverse, race prejudice works the same way. An employer can say; "Thank you Mr. Chavez but we are not going to offer you a job." The comment is kept specific to me as a person. If the employer says; “We don’t want any of your kind!” Then I’d sue him. He may feel the same way but he can’t express it or he’ll get in trouble. D. Marshall Fryer Senior Member Username: dmfryer Post Number: 46 Registered: 09-2003 Posted on Thursday, December 23, 2004 - 09:19 am:    As I and several others have indicated previously, any unsubstantiated disqualification of a manufacturer can have unwanted consequences. However, it is occasionally desirable to circumvent repeated substitution requests, job after job, for the same product. Perhaps something like: Available Products: ABC Co., "DEF" series. GHI Co., model no. "JKL" Rejected Products: The following product has been reviewed and found to not meet the <thickness/finish/etc.> requirements of this Section: MNO Co., "PQR" series. By limiting the exclusion and giving a specific reason why, the manufacturer is much less able to claim defamation, and if he has another product (that you might not know about) that does meet the requirement, he can still propose it. Richard A. Baxter Advanced Member Username: rbaxter Post Number: 5 Registered: 12-2004 Posted on Thursday, December 23, 2004 - 12:27 pm:    In answer to Dave’s question, I believe listing 3 manufacturers and saying No Substitutions is obviously restraining trade. Such language is really a compromise between specifying the one best product possible (which presumably would get you the highest quality, but would restrict competition, encouraging an unreasonably high initial cost) and specifying every possible product (which would permit total competition for a much cheaper initial cost, but at the great risk of quality.) We of course want the best products and the lowest costs – but we can’t have both. We have to find the middle ground somehow. One way to get as much of both as possible is to require at least 3 products so that the competition can keep the costs down while at the same time allowing only the presumed best products to be specified. Personally, I prefer not to use the term, “No Substitutions” because it eliminates all other products regardless of whether they are worse, better, or equal and I don’t see how that serves the Owner. I’m not so presumptuous as to assume that the products I prefer to specify couldn’t possibly be inferior to something that has not yet been adequately introduced to me. With regards to your comment on restraining trade, I don’t think any manufacturer can reasonably claim they were defamed simply because their products were not included on your list. Firstly, there are too many possible reasons for not including a product (You didn’t like it, you were unaware of it, it was not appropriate, you forgot about it, you accidentally deleted it, etc.) Secondly, such a claim would place an unreasonably enormous burden on our shoulders. We would have to seek out and include every possible manufacturer available in the area. We would also have to include any other products that could have possibly done the job. (Waterproofing manufacturers, for example, could claim that choosing one type of waterproofing implies that all the other types of waterproofing are inferior choices.) We might as well hand an unedited Masterspec to the Contractor and call it good. I agree with what others have said here, that specifically stating that a certain manufacturer’s product as unacceptable, as opposed to simply not including them on the list, can reasonably be understood as a defaming statement. It implies that you, as an authority on the comparative quality of products, knew all about the product and all of its competition, and that you would never use it due to its inferiority. Otherwise you wouldn’t have made a special effort to make sure it couldn’t be used. It also implies that all manufacturers that were not singled out have better products. Including a product automatically implies that you believe it is one of the best. Listing a product as unacceptable automatically implies that you believe it is one of the worst. Simply not including the product implies nothing. It is equivalent to saying “no comment.” J. Peter Jordan Senior Member Username: jpjordan Post Number: 30 Registered: 05-2004 Posted on Monday, December 27, 2004 - 10:23 am:    I have been telling people for several years that there are very few bad "products" out there which implies that there are few bad "manufacturers." More often there are poor workmanship, poor design decisions (product selection), or bad detailing. Even poor quality products have a place on certain projects when they are installed properly. I have told a number of people that I would rather have a mediocre product installed by a good mechanic than a very good product installed poorly. There are probably a number of exceptions to this observation, but most people I have discussed this with have agreed with my position. I believe this to be especially true with waterproofing, roofing, and painting, but if you think about it, there are a number of other work items you might be tempted to list. Good installers will tend to use better products and do it right the first time. They may also be better at resisting a general contractor who might compromise an installation to pick up a couple of days on the schedule. The implication in many specifications is that it is the product that matters most rather than the installer. Has anyone done a specification where the emphasis was on qualifying installers (applicators, erectors, etc.), focusing on specifying the mechanic rather than the product? David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 399 Registered: 03-2002 Posted on Monday, December 27, 2004 - 08:07 pm:    Guys, I'm not defaming anybody. It's not like I am stating in the specs that a certain product is crap or that the CEO of the company is a child molester. What I am saying is that for this particular project/client/application that their product is not acceptable. Often we have clients that give use school district standards to follow. These standards spell out programming items such as VCT in the classrooms and wood floor in the gym. Sometimes these standards get quite specific and describe products in great detail. Sometimes the standards list acceptable and unacceptable manufacturers. Who knows why the Owner does not want a particular manufacturer or product. Maybe they have had problems with the product in the past, maybe they dislike the distributor or rep, maybe the manufacturer contributes to the wrong political party. Sometimes we ask and sometimes we just do what they want. We had an incident a while back where the owner did not want a particular folding partition company. Since there are several fine folding partition companies we had no problem excluding them form the manufacturers list. Come bid time the unlisted manufacturer submitted a substitution. The architect innocently enough approved it. Come construction the owner gets the submittal from the unlisted manufacturer and gets upset. We told you that we did not want this manufacturer's partitions. It's in our standards. Why didn't you follow our standards and give us what we want? In the end the owner paid more to have another folding door installed. I believe the problem had to do with maintenance personnel and ease of repair. Anyhow we could have saved a lot of grief if only we had just listed the manufacturer that the owner did not want. Richard L. Hird P.E. CCS Senior Member Username: dick_hird Post Number: 15 Registered: 02-2004 Posted on Tuesday, December 28, 2004 - 07:06 am:    David: "The architect innocently enough approved it." This sounds like another example of expecting a specification to CYA. That is not what a specification is for. Anonymous   Posted on Tuesday, December 28, 2004 - 12:11 pm:    No matter what the Owner says he or she likes or doesn't like with regard to particular manufacturers and products, it is sometimes irrelevant in the context of what the law states about public bids. The next time an Owner requests that you eliminate a particular product or manufacturer from the specifications, you need to educate him or her about the potential legal consequences in doing so, and persuade him/her not to require anything outside the law, and to involve legal counsel before making such a decision. Isn't this obvious? There are lots of ways to craft a specification to exclude certain products, and by extension manufacturers, from a spec. If parts or maintenance are the issues that concern the Owner, find out what, specifically, special features the desireable product(s) has that the undesirable products do not, and specify accordingly. If the Owner cannot be this specific - he/she needs to accept the fact that, legally, he/she may HAVE NO CHOICE but to accept an equiivalent product during bidding. Your best move is to first KNOW the law regarding public bids (I am often surprised at the total lack of awareness of this most basic requirement among Owners AND architects), make sure that the Owner knows, and specify accordingly. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 400 Registered: 03-2002 Posted on Tuesday, December 28, 2004 - 07:58 pm:    The great American retailer Marshall Field once said, "Give the lady what she wants." We as design professionals give the client what they want. If the Owner has very strict requirements on the products that they want on their projects, well then we specify those products and/or requirements. For example if the college campus has all Schlage locksets, then we will specify Schlage locksets keyed to the Owner's existing key system. No subsititutions allowed. Another example is that Seattle School District only allows Collins & Aikmen and Mannington carpeting. They found through years of use that these two manufacturer's carpets held up better than all the others. Therefore, no substitutions allowed. In the first example this proprietary lock is allowed because several distributors carry Schlage. In the second example this is allowed because there are two competitors, though we would prefer to see three. There are some instances where we specify a proprietary product because nobody else makes a similar equivalent. James Hardie Hardiboard siding comes to mind. This also applies to art type materials such as Ecoresin products. I believe the intent of the law is to prevent limiting competition and to prevent collusion. We do not, however, want to swing the doors wide open and let just anyone bid any product on public work projects. Most of the time if we have three products listed we are satisified. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 401 Registered: 03-2002 Posted on Tuesday, December 28, 2004 - 08:01 pm:    Richard, The problem was the architect reviewing substitution requests was not familiar with the school district standards and did not know that it was an unacceptable product. Had the specs said that the product was NOT acceptable we would have avoided a mess and the owner would have saved money.....and received what they wanted in the first place. John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 302 Registered: 03-2002 Posted on Wednesday, December 29, 2004 - 10:10 am:    In Massachusetts, the public bidding laws are quite specific. There must be three manufacturers available (whether or not they are named in the spec). Awarding authorities (as we call municipalities, state agencies and other public entities) cannot limit competion for mere convenience or preference. There must be bona fide benefits to the public for the limitation. Limiting to a single hardware company may meet that criteria if it saves the authority in maintenance costs. (Of course, if we're talking about keying issues, lots of manufacturers can provide Schlage keyways.) As to durability of carpeting, if the authority has records to back up their claim, they're probably okay. Once those hurdles are past, the awarding authority must authorize the proprietary spec by public vote at a regular meeting. As to products with less than three manufacturers, this is accpetable (with the vote) if the product is important to the design. How does the reality work? Well, many authorities and designers do not follow the letter of the law. If a contractor or supplier doesn't make a stink at some point, nothing comes of it. Often, it's probably perceived by them as being not worth the effort to fight. They want to get done quickly and get on to the next project. On the designer-side, I always point these issues out to project managers to bring up with the client. Most of the time, the client will back down because they fear making the public vote, even in cases where they are on solid ground. Then we specify three products. Helaine K. Robinson CCS Senior Member Username: hollyrob Post Number: 120 Registered: 07-2003 Posted on Wednesday, December 29, 2004 - 01:30 pm:    Sometimes it's the other way around and the public client has its heart set on some product or manufacturer of whom we specifiers are very leary. More than once we've told a project manager that specifying such might cause liability for our company. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 402 Registered: 03-2002 Posted on Wednesday, December 29, 2004 - 02:08 pm:    We had a project where the public owner only wanted Parker paint. I guess the maintenance people were familiar with the paint brand and liked it. In this case we convinced the owner of the dozen good paint companys and they allowed us to specify several manufacturers. That said we don't want to force an owner to use a product that they are not comfortable with or have had problems with in the past. Ralph Liebing Senior Member Username: rliebing Post Number: 124 Registered: 02-2003 Posted on Wednesday, December 29, 2004 - 02:57 pm:    Agree, David, but at the same time we, for our own good, must be a little cynical and suspicious of information that comes to us from owner's sources-- they may be tainted for various reasons [convneience, kick-backs, gifts, etc.] and not really techically sound. Since the owners are ALWAYS bottom line oriented, we must provide them with sound technical, and cost-effective advice, including reliable and tested product sources. John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 303 Registered: 03-2002 Posted on Thursday, December 30, 2004 - 09:38 am:    David, It may be worth pointing out to the client that it's not the architect forcing them to use something they don't like--it's the law! Big difference. Richard A. Baxter Senior Member Username: rbaxter Post Number: 6 Registered: 12-2004 Posted on Thursday, December 30, 2004 - 01:19 pm:    Whenever I specify a product in compliance with an owner’s standard, I add the words “…as per Owner’s standard.” or “…in compliance with Owner’s standard.” I do this to remind (or inform) the contractor and the architect reviewing submittals that the product decision came from the owner. This probably doesn’t relieve us of our responsibility to comply with the local bidding laws, but it should, at least, discourage the contractor from submitting products that are not listed in the owner’s standard. Obviously, it also helps the architect to avoid inadvertently approving products that don’t comply with the standard.