Product approvals prior to bid opening.

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Author Message Sharon Lund New member Username: slundsehinccom Post Number: 1 Registered: 09-2003 Posted on Friday, January 23, 2004 - 01:38 pm:    I have recently heard that many architectural firms are no longer accepting product substitutions prior to bid opening. It seems to me this would be "illegal" for governmental projects, as it doesn't provide an open enough spec. I think a lot more research would have to go into each list of manufacturers if "equals" are excluded. I'm curious what other firms are doing about this issue. John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 182 Registered: 03-2002 Posted on Friday, January 23, 2004 - 01:49 pm:    In all the firms I have worked for, we have never accepted substitutions prior to bidding--only after. This is not illegal in Massachusetts for public work and is the customary approach here (at least as far as I am familiar). We must list at least three "equal" products--or list none with the requirement that there are three available products that meet the spec. I think it is a debatable point as to whether a product that is not listed by name, but meets all of the salient performance and product characteristics, is really a substitution. Anonymous   Posted on Friday, January 23, 2004 - 02:00 pm:    Think about it, what is the whole point of consideration/acceptance of a substitution.....to benefit the Owner. Therefore, you are absolutely correct about substitutions pertaining to public work, public entities can not deny a better idea that yeilds a benefit to the Owner (a.k.a. the public). Why would you even want to? David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 226 Registered: 03-2002 Posted on Friday, January 23, 2004 - 04:16 pm:    We do the opposite of Mr. Bunzick. We accept subsitituions before bidding and rarely after the contract is signed. The truth is that many of our problems in CA are caused by substitutions being accepted at the last minute right before bidding. If it were up to me, I would not allow substitutions at all. "When in doubt. Throw it out!" John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 183 Registered: 03-2002 Posted on Friday, January 23, 2004 - 04:37 pm:    It seems that there is more likely to be sufficient time to properly evaluate a substitution after bidding. On a large project, the bidding period is only a few weeks, but the construction period--during which submittals tend to be in the early parts--run many months or years. What would be the advantage of pre-bid substitutions? I understand that this potentially gives other bidders the opportunity to use the same substituted product. Though I've heard it said that it is harder to reject an inappropriate substitution during construction, this has not been a real problem in my experience. What do others think? Randy Cox New member Username: builderrandy Post Number: 1 Registered: 01-2004 Posted on Friday, January 23, 2004 - 05:07 pm:    As an Architect who is currently earning his keep as a general contractor, I can't look at your phrase "Why would you even want to (not accept a reasonable substitution)?" and not throw in my 1.75 cents. The first question that I asked myself when I was doing the Architect thing was, “Why is this contractor proposing a substitution?” I never found that it was primarily to benefit the Owner. Usually, it was simply because their primary suppliers carried a different brand (and it’s usually the supply house that generates the submittal package). There were (unfortunately) times when the Contractor needed to make a substitution because the specified product was no longer available. And in a few cases the Contractor proposed a substitution to save them money, or time and money. In those cases, the Owner would have benefited far less than the Contractor. I don’t know how it works to have substitutions during the bid process – I’m not that involved in our estimating work. I do remember how the Architectural firms that I worked for always budgeted the bid phase as one where the only costs would be printing and document distribution. Sometimes that was the case, but on some jobs – and sometimes they were the better documented sets – there were more RFI’s than I could answer in a nine hour day. It seems that adding a substitution review would be too much and would involve submittals from multiple potential contractors. Harold S. Woolard Junior Member Username: harold_woolard Post Number: 2 Registered: 12-2003 Posted on Friday, January 23, 2004 - 09:09 pm:    From the Manufacturer stand point I learned years ago from a contractor "Nothing beats quality like a cheaper price". I wish Architects and Engineers would hold their specs on our specified products, but most of time XYZ says they are equal and cheaper and gets used. We have learned to play ball with another less expenise line of some products just to compete. And that is just part of doing business. It is like the poly market where .06 mil usually is a nominal size .06 mil when actually milled is only .045 mils, but the literature says .06 mils. Richard Howard, AIA CSI CCS Senior Member Username: rick_howard Post Number: 14 Registered: 07-2003 Posted on Friday, January 23, 2004 - 11:16 pm:    Our state (and local) government front end is written so that before there is a contract, there is no such thing as a substitution. And after the contract is signed, it is rare to get a substitution. Requests for information are permitted during the bid period. That includes requests to add products as "named standards." Some may consider that to be merely a semantic difference from a request for substitution, but it doesn't replace any of the products we selected. The burden is on the proposer to submit sufficient proof for the architect to determine that the proposed product is indeed equal. We are given broad authority to reject the request for any reason. If accepted, an addendum is issued to all registered bidders, so all are on equal footing. If we have researched and listed sufficient products in the spec, we feel no particular obligation to add more. We prefer to name the folks who make an effort to let us know they are interested in our business. If the request to get your product added is the first time I have heard from you, you are not likely to get an affirmative answer. The successful bidder must provide a list of suppliers for all major items in his bid. This is intended to prevent bid shopping, but I suspect it only accelerates the game. If circumstances are such that the item bid and all of the other named standard products cannot be provided, through no fault of the contractor, he may then make a request for substitution. It does not happen very often. I will call each of the named manufacturers to verify the contractor's claim before considering a substitution. We are a little less formal in private bid work, but we still make an effort to be fair without opening ourselves to endless requests to evaluate products. We require completion of a three-page substitution request form submitted with all of the product literature, tests, etc. We expect to save the owner some money for our trouble and we make that a prerequisite for consideration of the request. Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 52 Registered: 01-2003 Posted on Saturday, January 24, 2004 - 01:44 pm:    Assuming you are working for the owner, everything you do should be for the owner's benefit. To refuse to consider non-specified products either before or after award of contract is to deny the owner the potential benefit of a lower cost. If a prior approval request reveals the existence of an acceptable product during bidding, it is in the owner's interest that all bidders know about it so they can choose the one with the best price. If you do not consider prior approval requests, my question is: Why should the owner be penalized by a contractor's bid that is higher than necessary because you would not consider other products during bidding? If, after award of contract, the contractor asks to use a product that is acceptable and less expensive than those specified, it is in the owner's interest to use it. If you do not consider substitution requests after award of contract, my question is: Why should the owner be penalized by your refusal to accept a satisfactory product, just because you didn’t know about it a few days earlier? I am not saying we should accept lesser products, that we should spend time evaluating unsubstantiated requests, or that we are obligated to deal with requests that arrive just before bids are due. But to refuse to consider non-specified products at any given stage of the construction process is contrary to our responsibility to the owner. Anne Whitacre, CCS CSI Senior Member Username: awhitacre Post Number: 78 Registered: 07-2002 Posted on Sunday, January 25, 2004 - 06:58 pm:    In our area it is customary to accept substitutions ONLY before bidding, because the thinking is that that is the only time when the costing will be competitive. And unlike some of our colleagues, my experience has been that substitutions after the contract has been signed do not benefit the Owner, but generally ONLY benefit the contractor; it is typical for us to find out that the bid was based on the idea of the Architect "caving" and accepting a non-specified product. We absolutely insist that if the contractor wants to use a non-specified product (and did not submit it as a substitution before bid, )that they demonstrate that the specified item is "not available" due to no fault of the contractor AND that they demonstrate that they put their order in at the right time to actually get the product on the job site AND that they provide a cost reduction to the Owner. I have had too many instances of a contractor selecting waterproofing (for example) based entirely on cost, and not on performance (on one recent project, the contractor clearly had priced only his cheaper product, which the rep said to me that "no reputable contractor would propose for a commercial project") and that in very few circumstances are the proposed items clearly in the Owner's benefit. Owners who hire the firm I work for, do not hire us simply based on construction cost -- we do a lot of institutional buildings that are owner-occupied and first time cost is not always a primary consideration of the Owner, but long term performance is. I feel that it is our responsibilty to be aware of other products, but I also feel that if the substituted product is a "better product" that the contractor would propose it during the bid period and not wait until after the bids have been taken. If the item is proposed only after a contract has been signed, it indicates to me that the contractor bid on that item, which was not specified; assumed that we would accept it (and the contractor is not hired to make design decisions -- we are); and those two things together indicate to me that the contractor does not take our professionalism seriously, or takes the contract documents seriously. In that case, we watch the progress of the work more carefully. And in many cases, we have input by the contractor during the design period.. and if they are proposing new products during the negotiation period, I see no benign reason for that behavior. If an item truly were to benefit the Owner, it would have been proposed during the design period. As for the "new" product -- frankly, if the product has to actually do anything, we don't want a new, unproven "new to our area" product on any of our institutional jobs. I must say that we do specify a lot of products generically -- but things that have either design or performance qualities are selected by us for very specific reasons, and we are the ones who are ultimately responsible for their long term performance. Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 53 Registered: 01-2003 Posted on Monday, January 26, 2004 - 12:12 am:    In the majority of cases I have to agree with you, Anne. But, as noted in my last paragraph, the proposed substitution has to deliver the same performance, and if that is the case it doesn't matter if the contractor had already included it in the bid. Assuming it is proven to be an acceptable product - and all that implies - the owner has the right to the better cost. Note that it is possible to pass on to the contractor the cost required to research a proposed substitution. (Of course, if you're a good little architect you'll never charge for extra services!) The thing I find interesting is that there is one group who will not consider prior approvals, but will consider substitutions, and another group with the opposite approach. As the Certs ad says, "Stop - you're both right!" John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 184 Registered: 03-2002 Posted on Monday, January 26, 2004 - 08:57 am:    I think that the preference of whether substitutions should be prior to bid or after is in part what the designer, and particularly the market in general, is used to in an area. Sheldon is right that the owner should get the benefit of lower cost products (if they perform equally). However, in the after-bid scenario I'm accustomed to, that rarely happens -- the contractor manages to keep it all. This is very frustrating and not easily thwarted. (How can we prove what the contractor would have paid for the specified product?) Reflecting on this as we discuss it, it does seem to me that if substitutions are accepted only prior to bidding then the bid-shopping incentive -- at least for products if not subs -- mostly goes away since they cannot take advantage of a lower price later. Owners may need to extend the bid period a bit to give time to review substitutions. However, under Massachusetts law, I'm not sure that we can exclude post-bid substitutions even if they are allowed before bidding. I'm going to try to look into that. As to vendors making sure that we are aware of their products prior to bidding: For many smaller firms doing more modest size projects, the sales reps do not come around and introduce themselves as they would to larger firms. In that scenario, the designer has to do all the "outreach." With limited budgets, it may not be practical to thoroughly check everyone in the marketplace for a particular product. In this situation, a substitute product may be perfectly fine, but "undiscovered". John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 185 Registered: 03-2002 Posted on Monday, January 26, 2004 - 09:00 am:    By the way, since this discussion is so regionally based, could folks let us know where they are practicing to help illuminate the discussion? I know where some of you are, but Sheldon, David, Richard? please fill us in. D. Marshall Fryer Senior Member Username: dmfryer Post Number: 19 Registered: 09-2003 Posted on Monday, January 26, 2004 - 09:20 am:    If I am the type of Architect who designs buildings FOR my clients (as opposed to imposing MY designs ON them; an important distinction too often ignored in this land of EGO), I should be willing to consider any opportunity that could potentially be of benefit to my client. This includes being willing to consider requests for substitution whenever the contractor chooses to make them. It does not include hiding behind arbitrary Division 1 rules as a method of rejecting such requests automatically. Do this too often and the contractor's respect for you will be lessened, and the cooperation you worked so hard to attain may disappear. Contractors have a thousand ways to cut corners; the best Architects know about 900 of them. In the long run, who will win? Personally, I would much rather see requests for substitution only after award. During the three week bidding period, if each of the bidders presents several requests, I will not have the time to respond adequately, without either sleep deprivation or a bid extension. After award, I will be evaluating only the successful bidder's requests, and they will be spread over a much longer period of time. Yes, some requests are bogus, but a few are real gems. Show some respect to your project's contractors, treat them as an equal part of the project team, and they will share a few of their best tricks of the trade with you, to everyone's benefit. Do not be so arrogant as to think there is nothing you can learn from a contractor. As I mentioned before, there is generally only one reason to approve a request for substitution: if it will somehow benefit the client. Now, benefits to the client can be tangible, such as a cost or performance benefit, or intangible, such as enabling the contractor to keep to the schedule. I consider it a benefit to the Owner to allow the contractor to use equal products with which he is already familiar, where finish and workmanship are important, rather than forcing him to use an unfamiliar product. Also keep in mind that contractors have ongoing relationships with certain suppliers and not others, there may be historical reasons for this. Be careful about forcing unfamiliar relationships between contractors and suppliers, the contractor may not have as much pull if a delivery or warranty problem arises. I could go on and on, but the important point is to look at things occasionally from the contractor's standpoint. Whereas you may be an artist, the contractor is a businessman. Ultimately, your Owner isn't going to be happy with the results, if the contractor hasn't been able to make a profit. Someone once said, democracy is the worst political system on earth, except for all of the others. Well, the competitive bid process is the worst project delivery system on earth, except for all the others. If the contractor doesn't lowball his bids, he won't get any work. The substitution request process exists as a legitimate means for the contractor to counteract some of the hazards of the competitive bid system. Donald R. Woolery, RA, CSI New member Username: donald_woolery Post Number: 1 Registered: 01-2004 Posted on Thursday, January 29, 2004 - 08:06 pm:    One way to improve the pre-bid substitution situation is to limit receipt of requests to X days (I think 4 days is very accomodating but 7 days keeps out the "trash" better) before bids are scheduled for opening. John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 188 Registered: 03-2002 Posted on Friday, January 30, 2004 - 08:45 am:    Yes, limiting the request to a fixed number of days is necessary. But, I don't think even 7 days (plus time to prepare, and distribute an addendum) is enough, depending on the product. While the proposer is supposed to include necessary documentation, (which is an iffy proposition, even if grounds for rejection) I would expect to need to conduct additional research. Calling manufacturers and collecting data can take a while. Donald R. Woolery, RA, CSI Junior Member Username: donald_woolery Post Number: 2 Registered: 01-2004 Posted on Friday, January 30, 2004 - 03:46 pm:    When a substitution is proposed against a well defined list of products, I say, "So? Convince me that I have a reason to consider your proposal. You have X days before I have to make my decision and tell it to all the bidders." The items specified were not specified on a whim, so it should be the proposer's job to demonstrate the virtues of the proposed substitution. Sometimes the material then submitted suggests an advantage to the owner but more time is needed to do a complete investigation, then I have advised the contractor to base their bid on the items/procedures specified and, should they be a successful bidder, we will consider the proposed substitution again after the award.