| Author |
Message |
David Axt, AIA, CCS, CSI
Senior Member
Username: david_axt
Post Number: 456
Registered: 03-2002
| | Posted on Friday, May 27, 2005 - 12:43 pm: |    |
Say for example that we get bad advice or information from a product rep and this causes a problem or failure in the field. Can we sue the rep?
I know we as architects are supposed to be the "experts" about every single solitary construction product/installation method. But let's face it, we are not. We rely a lot on the rep for their expertise and knowledge of their products. |
Doug Brinley AIA CSI CDT
Senior Member
Username: dbrinley
Post Number: 34
Registered: 12-2002
| | Posted on Friday, May 27, 2005 - 01:05 pm: | |
One of our reps for a complex item of equipment actually WROTE in his own words in a letter to our client (not printed literature) that his company used an identical design to his competitor - then - protested the specification on the basis that his design was different and with the conclusion the client prevented him bidding.
His letter was written to the client in the manner of a newspaper headline. Of course this guy's company has a long term maintenance contract with our client at another facility.
How'd you like to be the guy managing that maintenance contract? (Of course anytime that machine fails our client is out of business) |
David Axt, AIA, CCS, CSI
Senior Member
Username: david_axt
Post Number: 457
Registered: 03-2002
| | Posted on Friday, May 27, 2005 - 01:28 pm: | |
This is what I mean. I have run into a few unscrupulous reps that will say or do anything to get their products into the specs and onto the project. Then when there is a problem the rep is no where to be found or passes the buck to the manufacturer or installer.
What liability does a rep have anyway? |
Ronald J. Ray, RA, CCS, CCCA
Senior Member
Username: rjray
Post Number: 38
Registered: 04-2004
| | Posted on Friday, May 27, 2005 - 02:33 pm: | |
One can sue anyone. Winning is a separate achievement.
I recall at least one case a few years ago where the court found that while a manufacturer’s representative is responsible for accurately disclosing the capabilities and limitations of their products, anyone incorporating those products into contract documents is ultimately responsibility for verifying that the application is reasonable and appropriate for the use intended. A manufacture’s representative is rarely offered the opportunity to know everything involved in the project, and therefore not in the position to be the authority of the final application.
I also recall a case where a manufacture’s representative was found at fault for recommending their product in an application that was not appropriately. Each case requires judging on it’s own merits. |
David J. Wyatt
Senior Member
Username: dave_wyatt_csi_cca_ccca
Post Number: 17
Registered: 09-2004
| | Posted on Friday, May 27, 2005 - 04:27 pm: | |
Advice is worth what you pay for it, or, perhaps slightly less. |
Wayne Yancey
Senior Member
Username: wyancey
Post Number: 18
Registered: 05-2005
| | Posted on Friday, May 27, 2005 - 04:48 pm: | |
David,
Had similar issues with a carpet rep who was in your face till a callback or other issue came to light. The rep eventually became known as "Run and Hide."
Usually these reps over promote their products to the point it will slice and dice, is waterproof, is air impermeable, is vapor impermeable, is air permeable, is vapor permeable, inexpensive, "GREEN", contains post consumer and post industrial recycled materials, eadible, biodegradable, can be used in walls, roofs, below grade, in washrooms, wall panelling, as a floor covering, manufactured within a 500 mile radius by wokers making less than minimum wage, etc. I exaggerate but you get the point.
When you get a hint of the snake-oil sales pitch coming on, document your understanding in writing to the rep of what he/she stated, and demand a written confirmation reply before proceeding.
Nothing turns me off faster than a rep who bad mouths a competitors product instead of preseneting the virtues of their own product. I enjoy meeting reps who can name their comparable fellow competitors and say something nice about the competitors product.
Wayne |
Wayne Yancey
Senior Member
Username: wyancey
Post Number: 19
Registered: 05-2005
| | Posted on Friday, May 27, 2005 - 04:51 pm: | |
David,
Had similar issues with a carpet rep who was in your face till a callback or other issue came to light. The rep eventually became known as "Run and Hide."
Usually these reps over promote their products to the point it will slice and dice, is waterproof, is air impermeable, is vapor impermeable, is air permeable, is vapor permeable, inexpensive, "GREEN", contains post consumer and post industrial recycled materials, eadible, biodegradable, can be used in walls, roofs, below grade, in washrooms, wall panelling, as a floor covering, manufactured within a 500 mile radius by wokers making less than minimum wage, etc. I exaggerate but you get the point.
When you get a hint of the snake-oil sales pitch coming on, document your understanding in writing to the rep of what he/she stated, and demand a written confirmation reply before proceeding.
Nothing turns me off faster than a rep who bad mouths a competitors product instead of preseneting the virtues of their own product. I enjoy meeting reps who can name their comparable fellow competitors and say something nice about the competitors product.
Wayne |
Doug Brinley AIA CSI CDT
Senior Member
Username: dbrinley
Post Number: 35
Registered: 12-2002
| | Posted on Friday, May 27, 2005 - 04:55 pm: | |
You can say that again. |
Wayne Yancey
Senior Member
Username: wyancey
Post Number: 20
Registered: 05-2005
| | Posted on Friday, May 27, 2005 - 06:47 pm: | |
Thanks Doug,
I did not trust myself and I hit the post message twice. I did not trust myself and I hit the post message twice.
There is an echo in here.
Till later,
You have been great.
Enjoy the Giro d'italia final weekend |
John Bunzick, CCS, CCCA
Senior Member
Username: bunzick
Post Number: 364
Registered: 03-2002
| | Posted on Friday, May 27, 2005 - 07:12 pm: | |
WAYNE! A fellow cycling fan! There are so few of us out there--most people look at me a little funny when I tell them I plan to watch a bicycle race on a Saturday evening, or that I'm flying 3,000 miles to watch the T-Mobile International bicycle race in person. (OK, it's only 2,700 miles.) I'm thinking you would not find this odd.
(I know this is off post, but I got excited.) |
Ann Baker, CSI, CCS, CCCA (Unregistered Guest)
Unregistered guest
| | Posted on Saturday, May 28, 2005 - 04:11 pm: | |
"Nothing turns me off faster than a rep who bad mouths a competitors product instead of preseneting the virtues of their own product. I enjoy meeting reps who can name their comparable fellow competitors and say something nice about the competitors product."
Ditto that sentiment, Wayne. And may I say that the "good guys" are usually CSI members, most with at least CDT, and even more often CCPR, after their names? There's a guy in Denver that I still call for fire safing information even though he's not repping those products anymore, and he helps every time. Yet another reason to do business with a member. |
Richard Baxter (Unregistered Guest)
Unregistered guest
| | Posted on Saturday, May 28, 2005 - 10:33 pm: | |
I likewise do not like to hear manufacturers unjustly badmouth competitor products, but at the same time, if the rep. doesn’t tell us what’s wrong with the competitor’s products, who will? They generally don’t emphasize what’s wrong with their own products if they want to stay employed. Ironically, I have always preferred the honest and straightforward reps. that are occasionally willing to recommend competitor’s products over their own. I tend to trust them a lot more than the ones that only see the virtues of their products. If the product sounds too good to be true, it is. |
J. Peter Jordan
Senior Member
Username: jpjordan
Post Number: 80
Registered: 05-2004
| | Posted on Tuesday, May 31, 2005 - 05:13 pm: | |
I would be very surprised if a lawsuit against a product rep would be successful in almost any case (am surprised that it did in any particular case). The presumption is that the design professional is supposed to have the expertise to distinguish between solid technical information and a certain amount of what the courts have called "puffery." The Courts also presume that vendors will "puff up" their products in their marketing materials and presentations.
How the attorneys handle it (contract law, statute of frauds, etc.) may determine how it will go. There is a line that some vendors cross between "puffery" and fraud; one will have to look at intent, etc. Documentation of any fraudulent statement and proving that the architect was damaged will also be important.
A good product rep is beyond value, and usually they are good CSI members. They are the ones that know their product lines, their strengths and weaknesses. They usually know their competitor's product lines as well. I will listen to a product rep trying to bad-mouth a competitor, but I will also check it out.
I do run into architects who believe that they can pin a bad design decision on an unscrupulous product rep, but it is very, very difficult. The lesson for all is to do your job to the best of your ability. This means getting good documentation and making a committment (in writing), yea or nay, for each critical product or system in a building. This is especially critical if you have not run into this specific product or system before. |
Anne Whitacre, CCS CSI
Senior Member
Username: awhitacre
Post Number: 207
Registered: 07-2002
| | Posted on Wednesday, June 01, 2005 - 07:06 pm: | |
oh... I have a great example of bad advice from a rep. In our LAX office, a local product rep gave us a "recommended wall section" and then said that the warranty on the product would be void unless we used that wall section, so our office took it, and used it on several projects. When I saw it, the components looked "funny" to me, so I sent it on to the national technical director for that company and asked why the components were laid out the way they were, and sent him a copy of the "we won't warrant unless you do this" email... and well, it was not a pretty sight. Turns out the rep was giving advice contrary to the national corporation and had invented the wall section himself, which we then used ... and had problems with. After about 4 weeks of wrangling, I got an email from the national technical director (with said product rep copied) advising our office to accept ONLY details and sections that came from national headquarters; to not use any details generated by local rep; and to have only national technical people observe our jobs.
I think that rep is looking for another job right now... |
Lisa Turner, CSI, CCPR
Senior Member
Username: lisat
Post Number: 6
Registered: 03-2005
| | Posted on Tuesday, June 07, 2005 - 01:12 pm: | |
Question going back to the beginning of this string, I'm a little behind. Was the rep a company employee or independent rep? Bad information from an independent rep isn’t quite the same as bad information from the company. I did take a class on this subject eons ago, and remember that the laws vary considerably from state to state. And, although I realize failed product is failed product and the end user won’t see the difference, the closer the rep was to the company, the better luck you’ll have getting help getting something fixed.
Stories like this make me cringe…I use independent reps, and do everything I can to keep them informed and make sure they know to pass highly technical issues on to us. Our stuff isn’t usually highly technical, so we don’t have as many potential problems, but there is still a level of knowledge necessary to specify and install the products correctly.
Reps that make false claims and provide incomplete or bad information make all of us look bad. Please please please report these types problems to the manufacturer. We use reps in the field because we want people to have better service, have a person available not just to promote but to provide whatever service is necessary to the local market, something we can’t do effectively from the factory.
I know that if I got a call from somebody saying one of my reps was misrepresenting my product, I’d listen. I’m certain that most of my competitors (and most manufacturers in this industry for that matter) would do the same. If somebody didn’t listen, I’d be extremely wary of using their products in the future.
Anyway, thanks for listing to my little plea for help… |
David Axt, AIA, CCS, CSI
Senior Member
Username: david_axt
Post Number: 470
Registered: 03-2002
| | Posted on Monday, June 20, 2005 - 01:44 pm: | |
I was at a preconstruction conference last Friday where the contractor was complaining about product reps and their liability. It seems that he was sold on a certain product, it failed, the rep made his money on the sale and walked away. This left the contractor to pay for the repair.
I believe that the rep is an integral part of the construction team. Therefore, they should have liability for the performance of their products. Nobody gets a free ride. |
J. Peter Jordan
Senior Member
Username: jpjordan
Post Number: 84
Registered: 05-2004
| | Posted on Monday, June 20, 2005 - 02:54 pm: | |
Mr. Axt's story gets to the heart of one of the problems in the construction industry--contractors do not design, they build. [Unless I am misunderstanding the story, and the product rep was selling a construction "means and methods" or temporary facilities item.]
An inherent part of the design process is evaluating and selecting appropriate products. Too many contractors (and not a few product reps) want to take this important role away from the Architect in the belief that Architects do not have the "real-world" experience necessary to make an informed decision. In assuming this responsibility, contractors assume liability for which they may not be insured. The more experienced contractors I have come in contact with will respect architects' product selections, attempting to understand why it was selected before suggesting a substitution.
I do appreciate a contractor who makes a good suggestion which results in equal or better performance with some savings to cost or schedule. However, I would argue that such "substitutions" get careful "design" review by the architect before the contractor goes out and buys something. |
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