|Tami B. (Unregistered Guest)
|Posted on Thursday, April 28, 2005 - 01:24 pm: |
I am trying to locate research that validates using basis of design products can reduce liability of the contractor. Does anyone know of such research?
|Jo Drummond, FCSI|
Post Number: 10
|Posted on Thursday, April 28, 2005 - 02:50 pm: |
Tami, can you be more clear on what you mean. I am assuming that you mean if the contractor uses the product that you specified, he has no responsibility for it. Maybe yes, maybe no, but a clearer idea of what it is, and what the contract is, and what the circumstances are, would help to understand the problem.
|Kim A. Bowman, CSI, AAIA, LEED AP|
Post Number: 2
|Posted on Thursday, April 28, 2005 - 04:54 pm: |
Specifying products as the "Basis of Design" does not reduce liability for the contractor...it establishes a minimum quality required for the design/product. It also establishes a benchmark for other manufacturers to follow. If the contractor uses the basis of design, he still has liability in the installation, etc... as he normally would. My thoughts. I spec "Basis of Design" on almost 90% of everything I spec architecturally for our buildings we design. And our architects design around the "Basis of Design" as setting the quality standard we want to achieve as a minimum.
|Tami B. (Unregistered Guest)
|Posted on Thursday, April 28, 2005 - 04:20 pm: |
As a manufacturer I would like to know if there is any benefit in being basis of design, or if it is just as good to be a listed as an acceptable manufacturer. My guess is that all things being equal ($$$) that a contractor would wish to purchase basis of design equipment to limit liability. What are your thoughts?
|Anne Whitacre, CCS CSI|
Post Number: 180
|Posted on Thursday, April 28, 2005 - 05:55 pm: |
"basis of design" has nothing to do with liability and the only benefit to the manufacturer is that the manufacturer would be involved in earlier design discussions regarding that project, and therefore have enough knowledge to bid successfully on the project. the use of the basis of design will not limit the contractor's liability -- it may limit the amount of effort used for coordination, since those items will have dimensions and such built into the drawings.
that being said, we assume that any project that is designed in January will be using products in November that are quite different from what was drawn and specified and the burden of coordination and cooperation still falls on the contractor.
|Doug Frank FCSI CCS|
Post Number: 101
|Posted on Friday, April 29, 2005 - 09:38 am: |
I think there is a Huge benefit to a manufacturer being listed as the Basis Of Design. It has to improve, to some degree, the chance of being the product actually Bid and Installed in the Work. But even more significant, it shows that the manufacturer, or his local representative, has made contact with, and gained the trust of, the specifier. This kind of relationship goes far beyond one specific project. It can have far reaching implications when that manufacturer is listed as the basis Of Design on most, if not all, a firm’s projects. One could even argue that a good Rep will have established similar relationships with most specifiers in town and might be listed on nearly all the projects in town. Of course CSI membership, and Certification, can go along way toward building the relationship of confidence and trust between specifier and Rep.
|Joanne Rodriguez, CSI, CDT, LEED AP|
Post Number: 14
|Posted on Friday, April 29, 2005 - 05:51 pm: |
To add my two cents, I believe the Basis of Design language is helpful to all parties. It allows the specifier to list the minimum standards without just standards in mind, and it puts the burden of proof on bidding contractors, and like type manufacturer's seeking to be included in the project. And, as stated above, it does show that there has been some work done on part of the manufacturer specified and the specifier. If I come across a Basis of Design I can appreciate that the specifier has a higher level of understanding for that particular product or system.
|Ronald J. Ray, RA, CCS, CCCA|
Post Number: 34
|Posted on Saturday, April 30, 2005 - 10:34 am: |
I may be wrong, but I believe the concept of "Basic of Design" was created by Masterspec.
The problem I have with using this approach to specifying products, is that typically, additional manufacturers are usually listed as being acceptable provided their product is "equal" to that specified. Neither Masterspec or the architect/specifier has any idea if these additional manufactures produce a similar product, or even have the desire or capability to produce a similar product.
What happens when a manufacturer other then that used as the "basic of design" is submitted during the submittal phase and is rejected by the architect? Does the subcontractor eat the cost difference associated with using a different manufacturer then they used in preparing their bid? Does the subcontractor bail out of the project because they are a dealer for the rejected manufacturer and cannot obtain the "basis of design" product, leaving the general contractor with eating the additional cost of using a different subcontractor? Has the architect made everyone mad? What does the architect do when the general contractor talks to the Owner about how unreasonable the architect is in rejecting a manufacturer that the architects included in their own specification?
I think it is the architect's/specifier's responsibility to verify that all manufacturers listed have products equal to the "basic of design" product. If this is done, there is no reason to use the "basic of design" approach. All one needs to do is list each manufacture and their respective product. This sure makes it easy to review submittals, thus saving time, and headaches, during the construction administration phase.
I think it comes down to doing one's professional job, not taking the easy approach, and not transferring yet another responsibility from the architect to the contractor and product manufacturer.
Post Number: 115
|Posted on Saturday, April 30, 2005 - 12:28 pm: |
The "basis-of-design" concept was introduced by Masterspec to help avoid requirements for a change order for substitutions, as required by AIA A201 1997. This is discussed in the Masterspec evaluations for Section 01600.
In addition to listing a BoD product, the architect/specifier also needs to give relevant product characteristics for type, function, dimension, in-service performance, physical properties, appearance, and other characteristics for purposes of evaluating comparable products of other named manufacturers. Just giving a product and manufacturer (or 3 products and manufacturers), without also listing the relevat characteristics, is not enough.
I fully agree that the architect/specifier needs to determine that the other manufacturers listed make "comparable" (which does not mean "exactly the same") products. But even if 3 specific products and manufacturers are listed, that does not preclude the contractor from submitting a product not listed (in particular for public work).
This has nothing to do with transfer of responsibility. It is simply stating that the BoD product is what the designers are designing around.
|Ronald J. Ray, RA, CCS, CCCA|
Post Number: 35
|Posted on Saturday, April 30, 2005 - 08:03 pm: |
On projects which I prepare the Bidding Requirements and Division 1, post bid substitutions are not allowed on private projects, thus the contractor cannot submit products from manufacturers not specified.
On public projects, I allow post bid substitutions up to 30 days after Notice to Proceed, but only if there is an advantage to the Owner (i.e. cost savings) and the substitution in incorporated by change order. This 30 day time period has never be questioned, except in Texas where it was upheld by the State.
Post Number: 116
|Posted on Sunday, May 01, 2005 - 06:03 pm: |
That's interesting--I envy your being able to do this. In my experience with public projects (Federal, Maryland, Virginia, and various local public agencies), substitution policies are statutory, and the Division 1 requirements must be consistent with the state's general conditions, ie we (as the architect/specifier) don't get to decide the policy on substitutions.
Wish we could.
|J. Peter Jordan|
Post Number: 66
|Posted on Monday, May 02, 2005 - 11:34 am: |
I have been using "basis of design" language permitting use of "comparable products approved by the Architect" on public work to direct the Bidders/Contractor's attention to what is required with the appropriate "salient features" included. This does not have to trigger a substitution request, but it usually does.
I have worked on several projects in Texas where the Contractor can submit post-bid substitutions. The primary criteria is "show me the money [or the time]." If there is not substantial advantage to the Owner, the substitution is rejected. I do like this approach.
I would remind people that there are legitimate circumstances beyond the Contractor's control when substitutions must be considered rather late in the game. On larger projects with relatively long construction schedules, the specified product may not be available because the manufacturer is out of business or no longer makes that product. Contractors do not buy everything on the project right after the Notice to Proceed. Despite the diligence of the A/E (and the best intentions of the Contractor), it may not be available.
|David J. Wyatt|
Post Number: 10
|Posted on Monday, May 02, 2005 - 11:50 am: |
To emphasize Dave Metzger's last point, the Owner (whether public or private) is responsible for establishing substitution requirements, because the Owner is supposed to provide the Conditions of the Contract. Under AIA A201, the Architect is supposed to evaluate substitution proposals unless the Owner wants to limit or disallow them altogether. The specifier who seizes responsibility for substitution requirements without the Owner's acknowledgement may be undermining the Owner's rights and responsibilities AND assuming risks of which the firm's liability insurer would likely disapprove.
Bringing this back to the BoD discussion, I have sometimes based design on a product that was not the best fit because I was unaware of more appropriate solutions and innovations. Substitutions proposed by smart sub-bidders helped me make better solutions and resulted in "wins" for me, the owner, and the contractor.
I am afraid we may have inadvertantly pulled the substitution discussion lever. That's a discussion thread that amounts to a giant spool.
|Anne Whitacre, CCS CSI|
Post Number: 184
|Posted on Monday, May 02, 2005 - 01:06 pm: |
I think the biggest issue with "basis of design" products is exactly that we have designed -- and coordinated -- around that one product or manufacturer. A lot of times we'll get some alternate product with different dimensions and then there is a fight about who is going to do the coordinating to make the new thing fit the project. (yes, I have the language; its still a fight... something about how architects do this for the love of the profession and contractors work for actual profits...) If we have basis of design, I think its pretty important to make sure that the burden of coordination and re-dimensioning falls back on the contractor; we run into this on curtain walls and window sections all the time.
|Joe Contractor (Unregistered Guest)|
|Posted on Wednesday, May 04, 2005 - 10:30 am: |
I would think a contractor would absolutely reduce risk by purchasing the exact equipment that the engineer designed the project around. Even more so if the engineer is not qualifying the listed equals as equals.
|Leon Ruch, RA, CSI, CCS (Unregistered Guest)
|Posted on Wednesday, May 04, 2005 - 12:59 pm: |
As Anne says, the "basis of design" products are the ones that the design coordination has been based on. This can be especially important for kitchen equipment, HVAC units, and similar items that have connections to multiple facility services. If a contractor provides the BOD product, it's with a certain level of expectation that the drawings are correctly coordinated. If a plumbing line needs to be changed in size or rerouted (for example), there will be a change order claim.
For products other than the BOD that are listed in the specifications or approved through the substitution process, Division 01 can be written to make the resulting coordination the contractor's responsibility. When this is done (and enforced), the original question about the contractor's liability/risk comes into play. The contractor may have bid Product X because of a lower equipment price from the supplier, but he also needs to consider his cost for coordinating the changes to structural openings, electrical power feeds, and any other differences between the products (including rework/cutting and patching if the coordination doesn't happen in time).
I would answer Tami's questions by saying that, if I were a contractor, I might give a competitive price advantage to the BOD product over other specified products. How large that difference is would depend on how much coordination might be involved for that particular product, whether the coordination involves subs or separate primes, past experience with both products, and similar considerations.
|David R. Combs, CSI, CCS, CCCA|
Post Number: 45
|Posted on Wednesday, May 04, 2005 - 02:03 pm: |
"For products other than the BOD that are listed in the specifications or approved through the substitution process, Division 01 can be written to make the resulting coordination the contractor's responsibility. When this is done (and enforced), the original question about the contractor's liability/risk comes into play. The contractor may have bid Product X because of a lower equipment price from the supplier, but he also needs to consider his cost for coordinating the changes to structural openings, electrical power feeds, and any other differences between the products (including rework/cutting and patching if the coordination doesn't happen in time). "
I would strongly - but respecfully - disagree (or perhaps I misunderstood your position?). If the design professional lists a product or manufacturer - basis-of-design or not - in the specifications, they have implied that they have researched those other products and determined that they are suitable and satisfy all the relevant design criteria. Ascertaining if a particular specified product complies with design criteria (including coordination with other work) is not the contractor's responsibility. They are not a QA / QC service for the design team.
If an engineer specifies a boiler, and lists three acceptable manufacturers, two of whom make boilers which are 12 feet long and one is 14 feet long, the engineer owes a duty to the Owner to make sure the 14 foot long boiler will fit in the mechanical room (in case thats the one the contractor selects). It is not the contractor's responsibility to "make it fit", or enlarge the room at no additional cost. This is clearly a design error, not a contractor coordination error. Adding language to Division 1 will not change this fact. And once the contractor pleads his case to the owner (when trying to resolve the claim), I seriously doubt the owner will embrace the exculpatory language in Division 1 as being the savior. If I were an owner, I would view such a clause as a screaming banner that the design team didn't do their homework, and inserted it as a substitute.
(Of course they would likely respond that they were squeezed on the fee, and didn't have time to do the necessary research.)
|William C. Pegues, FCSI, CCS|
Post Number: 378
|Posted on Wednesday, May 04, 2005 - 03:25 pm: |
On architectural items, I take your position entirely. And rather than just list one product from one manufacturer and then list other acceptable manufacturers, I list specific products from all acceptable manufacturers. If someone does not make their item so that it works with the layout or adjacent conditions, then I don't list it/them.
On the other hand, in the world of mechanical items, in particular large mechanical items like air handling units, etc., I only partly agree with you.
We don't do MEP in house, we use consultants. In this area here, the common way to do things is basis of design. A product from a manufacturer is listed, and the adjacent conditions are designed around its requirements (access, slab penetrations, power supply, doors, etc.). Then other manufacturer's that are acceptable to the consultant are also listed.
Now what they do is specifically state in the spec that these other manufacturer's products, though acceptable, may have requirements necessitating changes in adjacent conditions, and that the cost of redesigning those conditions, or relocating them if already placed, are required to be included in the price for that item.
This very openly alerts the contractor that though he can choose from the other manufacturers, but at a known risk.
For these major kinds of items (they are typically few and all large in our practice of office buildings and high rise residental), this is the only realistic way you can do this. If not, the architect/engineer is going to have to have several designs. This could mean stairs coming up to the penthouse will have to have a couple different layouts, rooms will have multiple layouts, etc. No one is going to do that, and also, no one wants the Owner to have to pay for the Contractor's convenience of having chosen something else.
In short, it is as though only 1 item was specified, and the contractor is proposing a substitution. The only difference is that we have told the Contractor ahead of time what other manufacturers are acceptable.
| (Unregistered Guest)|
|Posted on Wednesday, May 04, 2005 - 04:05 pm: |
I can’t say that I totally agree with Mr. Combs either. Whenever I include a Basis-of-Design product, I also require that the products of all the other listed manufacturers be comparable and that they comply with all requirements of the Contract Documents. I’m basically telling those manufacturers that I don’t mind if their products are used instead of what we showed and specified, but they have to either make sure their product looks like and works just as well as the specified product or they better be prepared to cover the costs of making it work. They are the ones claiming that it is a comparable product that complies with requirements of the contract documents. The specification did not say to bid any ole product they have on hand, they have to comply with all requirements of the architect’s documents. Listing the actual products is always best too, as Mr. Pegues said. Division 1 “Product Requirements” should require these manufacturers to indicate exactly what changes will be required if their product is selected. The bid should reflect any additional work that will be required to make these changes. The Architect should also be the one to determine, during bidding negotiations, if the product truly is comparable to the specified product.
There is always a risk that none of the other listed manufacturers can possibly comply with requirements and so the spec is really a disguised sole-sourcing of the product. That can cause hiked-up costs, which does not serve the Owner. Therefore, I agree with Mr. Combs that the specifier and architects should at least make some effort, to ensure that the listed manufacturers have products that will work. It is the only way to make sure that the products are actually being competitively bid.
There is also a risk of major legal problems on jobs where more than one manufacturer is required by law to be listed. In those cases, the listed manufacturer’s products definitely need to be thoroughly researched to make sure that they comply with all requirements. And, as Mr. Combs suggested, the documents should allow for all specified products to be used without requiring added costs for one manufacturer over another just to make their product fit the documents. I don’t know if it’s required legally, but perhaps it should be required ethically.
It may be true that Architects either get lazy or simply do not have time to research all the other manufacturer’s products. But that doesn’t mean specifiers should automatically leave the un-researched other manufacturers off the list. It still serves the Owner best if one of those other manufacturers turns out to have as good a product for a cheaper price.
|Chris Grimm, RLA, CSI (Unregistered Guest)|
|Posted on Thursday, May 05, 2005 - 03:38 pm: |
3.12.6 in the AIA A201-1997 General Conditions indicates that if the Contractor has submitted Shop Drawings, Product Data, Samples or similar submittals, this represents that the Contractor has verified that the materials will meet the requirements of the Work and of the CD's.
|Kim A. Bowman, CSI, AAIA, LEED AP|
Post Number: 7
|Posted on Thursday, May 05, 2005 - 05:10 pm: |
We have also been eliminating product data submittals and some shop drawing submittals if the contractor uses the basis od design products that we so diligently research, spec, coordinate, get manufacturer support on a regular basis, and use on a regular basis from project to project and in our in-house master specs. We have been getting BoD products just because it saves the contractor time in not having to prepare shop drawiongs and submittals. Examples of deleting shop drawing/product data requirements: ceilings, paints, residential equipment, insulations, underslab vapor retarder, eifs, roof hatches, wood doors, h.m. doors and frames, resilient flooring, concrete floor sealers, wall coverings, flagpoles, toilet accessories, signage, window treatment, floor mats, etc... Thoughts on this?? I say we eliminate half the submittals we require and get on with life and designing and building buildings!! Maybe the talk about eliminating or at least paring down shop drawings can be another discussion here!
|Kenneth C. Crocco|
Post Number: 22
|Posted on Thursday, May 05, 2005 - 05:21 pm: |
It's difficult to jump into a lengthy discussion like this one; but here goes:
We should distinguish between private work and public work with BoD specifications. I personally don't believe BoD is allowable on all public work. (definately not in Illinois State work) however it is used and gotten away with frequently. BoD is not equal to "or equal" if "or equal" is required by agency. (I hate "or equal")
Second: BoD should be used when: 1) manufactures' products are different; 2) designers know what the products are and anticipate those differences; and 3) the drawings and design are based on one of these products because it is so difficult to design based on three products (without making three drawings).
example: the machine-roomless traction elevators are not all the same. You could, if you chose, specify by BoD and have the drawings and specs designed based on one of these systems. This is acceptable practice, but suggest you be prepared if the shaft dimensions need to change if another manufacturer that was listed is the selected product.
Rule of thumb: Basis of design is not a method designed to save us work or fee; (although it may do that). It is primarily designed to solve a difficult design problem: ie. creating design drawings while listing three or more products when they are physically different.
Post Number: 106
|Posted on Thursday, May 05, 2005 - 09:54 pm: |
Thanks Ken for your always clear thoughts (and congratulations on your FCSI!)
Kim: Do you require a contractor's certificate (ie. a sworn affidavit) indicating that the contractor is providing those BoD products? Don't know why you'd need a submittal on a vapor barrier you'd already researched and specified. But a formal commitment to provide the listed product might be a good thing to have in hand.
|Kim A. Bowman, CSI, AAIA, LEED AP|
Post Number: 9
|Posted on Friday, May 06, 2005 - 11:49 am: |
Yes, we ask for a certificate or letter on the contractor's letterhead stating they are providing BoD products and what they are. That is all that is required unless samples are needed for color selections.
I also spec BoD on public projects in numerous States (IN, MI, IL, KY, NC, FL, GA.) State or public agencies have not given any feedback at all, except NC, which mandates a minimum listing of 3 mfgrs no matter what.
|Kenneth C. Crocco|
Post Number: 23
|Posted on Wednesday, May 11, 2005 - 03:12 pm: |
State of Illinois requires that if you choose to use a proprietary specification; manufacturer listed, you are required to list three manufacturers and identify the product or model of each (this effectively eliminates BoD). Even in the hardware section if one creates sets based on a hardware item by one manufacturer listed in the hardware sets, the specifier is required to list the product of each of the other manufactuers. "Or equal" is forbidden.
We need to watch state agencies that don't always play by the rules and then one day decide they will. I have not heard of the state's response to BoD since its inclusion in masterspec.
|John Bunzick, CCS, CCCA|
Post Number: 356
|Posted on Wednesday, May 11, 2005 - 03:42 pm: |
What Kenneth describes is true in Massachusetts as well. Although one only has to list the three manufacturers, not the model, those that are listed must be capable of making the equal product. In practice, this is sometimes not followed as strictly as it should be, but then one is left open to change orders or other disputes.
|Ronald J. Ray, RA, CCS, CCCA|
Post Number: 36
|Posted on Wednesday, May 11, 2005 - 05:24 pm: |
It sounds like the State of Illinois is making architects do their jobs. Good for them.