The ethics of rejecting a substitution

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Author Message George A. Everding, AIA, CSI, CCS, CCCA Senior Member Username: geverding Post Number: 279 Registered: 11-2004 Posted on Friday, March 23, 2007 - 04:16 pm:    Here is a hypothetical situation I’d like you all to consider: Our hypothetical specifier, let’s call him “George”, recently removed “Acme”, one of the major manufacturers of a certain product, from his specs. For many, many years, the A/E’s in “George’s” town based their designs on “Acme”; the manufacturer’s rep was very responsive and helpful during the design phase, and excellent with follow up. About 3 years ago, the old product rep was let go, and a younger (and presumably lower-salaried) rep took over, not only in “George’s” market region, but in four others, whose product reps were also fired or retired at about the same time. “George” still hasn’t met the “Acme” product rep, even after three years. The project architects and designers in “George’s” office complain that the rep doesn’t return their phone calls and emails on a timely basis, if at all. Now most people in the office base their designs on one of “Acme’s” major competitors (with, not all that coincidentally, a very responsive product representative) and “Acme” is out of the list of manufacturers in the spec. A large project, let’s assume hypothetically, is out to bid. The spec is a closed “basis of design” based on one of “Acme’s” competitors and listing four other competitors as “other approved manufacturers”; of course “Acme” was excluded from the list. Assume also that “Acme” and all the listed competitors are very comparable in quality; there are no issues with the product itself. During the bidding process, the “Acme” rep submits a request for substitution. Our hypothetical specifier “George” is inclined to reject the substitution based on his firm’s recent history with the rep’s lack of responsiveness. What do you think professional ethics demand in this situation? Can your opinion of the representative’s responsiveness be the sole reason for rejecting a substitution, or must you base your rejection only on the salient qualities of the product itself? Any similarity in this hypothetical situation and any real project or real specifier is completely coincidental, of course. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 841 Registered: 03-2002 Posted on Friday, March 23, 2007 - 04:30 pm:    An architect can reject a substitution for ANY reason what so ever. We do not have to explain ourselves. We commonly reject substitutions due to lack of review time. Our motto is, "When in doubt, throw it out!" I believe the ethical question comes in to whether you should include that product in your specs for future projects. George A. Everding, AIA, CSI, CCS, CCCA Senior Member Username: geverding Post Number: 280 Registered: 11-2004 Posted on Friday, March 23, 2007 - 04:45 pm:    ...ok, extend the scenario. What are the ethics of keeping Acme out of future specifications? Ruppert Rangel, AIA CCS Senior Member Username: rangel Post Number: 10 Registered: 08-2006 Posted on Friday, March 23, 2007 - 04:47 pm:    If your scenario indicates your sole reason for rejecting the product because you don't like the representative, I don't agree. If you are presenting the possibility that this rep may or will not service the product (or your client) after installation, I agree that may be a valid reason for rejection. As a professional, you need to ask yourself "does rejecting this product serve the best interest of my client"? If the answer is yes, don't hesitate your rejection. Nathan Woods, CCCA, LEED AP Senior Member Username: nwoods Post Number: 188 Registered: 08-2005 Posted on Friday, March 23, 2007 - 04:50 pm:    There is no compulsion to put ACME back into the specifications, but if there is a value to the project (ie: Cost Savings), you are doing your client a diservice in rejecting the substitution request if ACME is"...very comparable in quality" and "...there are no issues with the product itself", and potentially performing an illegal action if it is a public bid situation. Nathan Woods, CCCA, LEED AP Senior Member Username: nwoods Post Number: 189 Registered: 08-2005 Posted on Friday, March 23, 2007 - 04:53 pm:    BTW, this might elicit other directed responses if it were in the Construction Adminstration portion of this forum. George A. Everding, AIA, CSI, CCS, CCCA Senior Member Username: geverding Post Number: 281 Registered: 11-2004 Posted on Friday, March 23, 2007 - 05:03 pm:    Good idea, Nathan. I'll post it there as well. Richard L Matteo, AIA, CSI, CCS Senior Member Username: rlmat Post Number: 205 Registered: 10-2003 Posted on Friday, March 23, 2007 - 05:47 pm:    If a product is specified as "basis-of-design" and 3 or 4 other comparable manufacturers/products are also included in the spec - it is my understanding that, even in public work, there is nothing that says you have to accept the substitution. That being said, if the product is indeed comparable to the specified products and there is a "value to the project", then maybe you can accept it. However, it's been my experience that in cases like this, the Client also has a say in the acceptance of substitutions, and should be advised that the architect has experienced a lack of responsiveness from the rep., knowing this, the Client may decide to reject the request, or if there is "value to the project", decide to accept it, but at least he has the knowledge he may have to deal with non-responsiveness in the future. I have removed a couple of manufacturers/products from my masters as a result of the manufacturer or his representative being non-responsive, or exhibiting a lack of support for their products in my area. If there is a particularly good product that I want to continue to use, but there is an issue with the local rep., I either go directly to the manufactuer and make my concerns known, or find another way to deal with the rep. J. Peter Jordan Senior Member Username: jpjordan Post Number: 225 Registered: 05-2004 Posted on Friday, March 23, 2007 - 07:46 pm:    I think it makes a difference if the rep. really adds value to the product itself by providing some type of on-site service/support. Some types of products really need this, and a rep who is not responsive may hinder the project schedule by his/her lack of action. Rejection of the substitution should definitely be considered. On the other hand, if the nature of the rep's support and service is directed at making the architect's job easier and her/his lack of attention to the design community does not affect the installation or performance of the product, I think you are shakier ground, especially in public sector work. It may be annoying to not have all the information you need, but the product may actually be the best one that could be selected. I do object to a marketing strategy that seems to emphasize substitutions rather than service to the design community. It can be more than a little annoying. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 493 Registered: 07-2002 Posted on Friday, March 23, 2007 - 08:26 pm:    I was ready to come down directly with the "you don't need to accept it" folks, but after reading Richard's comment, I'm more inclined to agree that there is a difference between types of products -- if I need or expect on site observation or attentiveness, the newer unresponsive rep's product won't get on my job. On the other hand, if the product is something like carpet -- where the carpet rep is not actually an installer -- then it might not matter so much. I did have an issue like that some years ago when a very competent Seattle area rep was replaced with the distributor's girlfriend. the products were so ubiquitous that they never left the specs, but that catalog hasn't been updated in at least a decade. (good thing the information is available on line) George A. Everding, AIA, CSI, CCS, CCCA Senior Member Username: geverding Post Number: 284 Registered: 11-2004 Posted on Monday, March 26, 2007 - 11:13 am:    The difference in type of products is an interesting angle; some things do require much more hands on product representation than others. And of course ethics demand that we put the interests of the Owner first. So I am in agreement that if the lack of responsiveness from the product rep will hinder the project, we are on firm ground rejecting the substitution. The Owner's input on substitutions is essential after the contract is signed; at that time, the substitution will lead to a change in the contract. During bid, however, I don't think the Owner needs to review. It is up to the A/E to determine if the proposed substitution is in fact comparable to the BOD, just like presumably he or she did with the four approved manufacturers. Ken Moore, FCSI, CCS, SCIP Senior Member Username: kjmoore Post Number: 12 Registered: 06-2006 Posted on Tuesday, March 27, 2007 - 02:16 am:    When asked by a manutacturer "How do I get inclued in your specifications". My resonse has been: I need three things from your company. 1. Adequate technical data to assure me your porduct is quality I want in my specs and is available in a timely manner. 2. Your company keeps me informed of new porducts; and equally important of existing products that are being discontinute or modified. 3. Should we ever have a problem in the field with you product you, or if project is out of town, your conterpart in that city will be on job site within 24 hours of notification to you. I want immediate response from your company because I do not want the problem camaouflaged in the field before a manufacturers represenative arrive on site. If the company is not responding to items 1 and 2, I have do not think I will response to item 3. Thefore I do not spec that company. With out resonse to providing current tech data a spec writer is subject to problems. To quote my wife There is a old Chinese saying "No ticke no washe" There is a old spec writer saying "No teche data no specie" Anonymous   Posted on Tuesday, March 27, 2007 - 09:57 am:    I will stay anon because of the content of this post. Large manufacturer, rep stabbed arch in back by badmouthing competitors directly to owner. 5 meetings later design team got what they originally designed and it worked fine. Result...Large manufacturer removed from spec. Fast forward 4 or 5 years. Rep left big manufacturer and went to another. Result...original large manufacturer put back into spec, new manufacturer removed. To me, the rep is huge. If non responsive and lacking integrity how can I trust him/her to properly protect us and the owner. Even though the products are equivalent, I would have no problem rejecting the substitution from the rep that I did not trust. Anonymous   Posted on Tuesday, March 27, 2007 - 10:09 am:    Annonymous No. 1, let me guess: Kalwall? Lynn Javoroski CSI CCS LEED AP SCIP Affiliate Senior Member Username: lynn_javoroski Post Number: 527 Registered: 07-2002 Posted on Tuesday, March 27, 2007 - 11:00 am:    The integrity of product reps is unquestionably important; we rely on them for correct product information, for industry standard updates, and for honest appraisal of competition. If, however, a product rep fails to be honest and reliable, I contact the company they represent. If THEY are unresponsive to this, showing lack of respect for what I'm trying to do, and if the parent company displays lack of integrity by allowing bad behavior on the part of its representatives, then they are out of my spec. If, however, the parent company responds by reprimanding the representative, why would I remove them? We all make mistakes. Richard L Matteo, AIA, CSI, CCS Senior Member Username: rlmat Post Number: 208 Registered: 10-2003 Posted on Tuesday, March 27, 2007 - 11:18 am:    I don't need to be anonymous on this - I have had similar issue happen to me, where a rep went behind my back to the owner and "bad mouthed" both me (or my firm) and the other manufacturers saying "we were costing the owner money" because we wouldn't accept their product. I've told various reps up front on more than 1 occassion that if they ever go directly to the owner behind my back, that it's the fastest way to get deleted from my spec and that they are history, period. Anonymous   Posted on Tuesday, March 27, 2007 - 11:31 am:    Anon #2...no not Kalwall. But good guess. Richard L Matteo, AIA, CSI, CCS Senior Member Username: rlmat Post Number: 209 Registered: 10-2003 Posted on Tuesday, March 27, 2007 - 11:32 am:    I also have to agree with Ken on responsiveness. There is a large manufacturer located in the southeast (to remain nameless) who became non-responsive about 4 years ago here on the West Coast, basically by becoming unavailable. We first had difficulty finding a local rep. and when we finally did, he never followed through. Then he disappeared because the company decided to eliminate the local reps. I have taken the company out of my specifications because in order to get to them you have call a sales rep in the midwest and their technical support is on the East Coast. I am able to contact a local rep for the same material here in southern California and he is able to meet at my office to review the project or go out to the job site if necessary within a reasonable period of time. Their service to my firm has been invaluable. I'm sure that if I needed the same kind of service from the other manufacturer, they would not fly someone across the country for a 2 hour meeting. Hence, they are not able to give me the support I need. George A. Everding, AIA, CSI, CCS, CCCA Senior Member Username: geverding Post Number: 288 Registered: 11-2004 Posted on Tuesday, March 27, 2007 - 11:50 am:    In the "hypothetical" case I posed, the problem is more with the manufacturer than with the representative. After all, it was the manufacturer who fired several old reps and hired one new guy to take over a much larger territory. It's not really an integrity issue with either rep or manufacturer (although I agree that unethical behavior on the part of a rep is sure grounds for being cut from the spec). This question deals solely with responsiveness, not at all with honesty. I like Ken's three points. The best product representatives are around when you need the information, even if you don't KNOW you need it. They help you fix problems when they occur, and they do it in a timely manner so that small problems don't become huge. Ken Moore, FCSI, CCS, SCIP Senior Member Username: kjmoore Post Number: 13 Registered: 06-2006 Posted on Tuesday, March 27, 2007 - 10:17 pm:    Lets change players An A/E firm has a project out for bids by Invitation Only. A Contractor submits a request to be added to bidders list. Said Contractor is know to construction buildings according to CD and provided a Quality Building. But by past history is know for being 3 to 6 months late in delivery of completed project. Should A/E recommend to Owner said Contractor be added to approved bidders list. Knowing that completion of Owners building will be at lease 3 to 6 months later than other Contractors. Remember Owner will not have use of Facility for an additonal 3 to 6 months which means additonal cost of construction loan and loss of reveniue. Also A/E will have an additional 3 to 6 months of CA manhours. Summary: Responsivness has to be one of the items considered when selecting a Product by a manufacturer, a Contractor or an Architect for a Project. Doug Frank FCSI CCS Senior Member Username: doug_frank_ccs Post Number: 174 Registered: 06-2002 Posted on Wednesday, March 28, 2007 - 08:07 am:    Colin, I hope you are alerting all of your contacts in the Manufacturers category that this thread exists and how reading it might benefit them. Ralph Liebing, RA, CSI Senior Member Username: rliebing Post Number: 570 Registered: 02-2003 Posted on Wednesday, March 28, 2007 - 09:06 am:    I've just had a flash [perhaps a "senior moment"] but is this really an ethical problem, or is it a matter of professionals doing their job correctly in the best interests of their clients? Certainly we should never position ourselves to create or allow any adverse situation on our client's projects, if we can help it at all. May be this shows the direct correlation between ethics and professionalism! Brett M. Wilbur CSI, CCS, AIA Senior Member Username: brett Post Number: 150 Registered: 12-2004 Posted on Wednesday, March 28, 2007 - 09:39 am:    I don't remember there being a question on the Architect's licensing exam about practicing in the "best interest of the Owner". I think ethics has to do with the "health, safety, and welfare" of the public. From that view point, does the product reps non-responsiveness create and imposition on the public’s health, safety, or welfare? Yes. The Owner is only part of the public we are protecting. If the product is late in delivery, or it’s installation is not reviewed by the manufacturer in a timely manner, or any rep related issue causes a delay, a financial burden may be inherited by the Owner and public-at-large. The non-responsiveness of the rep may also cause unsafe or unhealthy situations if no information or the wrong information is provided to the designer or builder. There are many angles and factors to review. We do 99% public work in the educational market in Texas. The Texas Education Code allows us to create criteria for determination of successful proposers. Several of the criteria (criterion?) address Owner's past experience with the Offeror, Offeror's reputation, responsiveness to warranty issues, past record of completing projects on time, etc.; enough to tally a percentage which may put someone with less quality or a higher price at the top of the list. Quality of the contractor (product) is also a criterion, but only makes up 10% of the total. Price usually makes up only 40%. The same can be applied to manufacturers, installers, fabricators, etc. The lowest price doesn't always get the job, but the highest quality doesn't always get it either. Ralph Liebing, RA, CSI Senior Member Username: rliebing Post Number: 571 Registered: 02-2003 Posted on Wednesday, March 28, 2007 - 10:37 am:    Shared the following with Brett who suggested that I post it-- We are legally bound, via the registration laws, to “protect public health, safety and welfare”. Our professionalism and expertise allow us to utilize our knowledge or other resources to provide any of a variety of solutions to meeting our legal obligation[s]. Ethically, we are hired by and under contract to the client/owner, and as their agent are bound, contractually to act in their behalf [I.e., best interest]. So why would we propose or accept any situation, material, etc. that could or has the likelihood of adversely effecting the client’s project? For the legal end, and using our professionalism we could sell the owner on and provide a high-cost solution needlessly, which is unethical, vis-à-vis the owner best interest. And your point about the exam is well-taken; they SHOULD be asking this and similar questions. Only problem; with no practice instruction in the schools, who could answer? Mark Gilligan SE, CSI Senior Member Username: markgilligan Post Number: 149 Registered: 05-2005 Posted on Thursday, March 29, 2007 - 03:39 am:    I believe that every professional lives and dies based on his reputation and as such we should strive to be ethical. I also believe that ethics is not an issue for the licensing board. The licensing board is interested in whether we are competent to be registered, we have paid our fees, we have violated any laws or regulations, or whether we have violated our contract with our client. I believe that the arguments having to do with our obligation to the public at large are on shaky ground. I recognize that we have certain obligations to the general public but I believe that these kick in only in limited circumstances and are generally not at odds with our obligation to our client. For the record I have outed a Client when he was not willing to mitigate a hazard to an adjacent school yard that originated on his property. I have seen people invoking our obligation to the general public in order to justify requiring a more expensive solution that was not in our clients best interests where there was no violation of the code and where the life safety risk was no more than normal. Thus I believe that we should be very careful in invoking any perceived oblighations to the general public. John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 690 Registered: 03-2002 Posted on Thursday, March 29, 2007 - 08:57 am:    Actually, licensing is in place precisely to protect the public interest in the realm of health and safety. Licensed professionals--first and foremost--are obligated to design in a way that does not put the public at undue risk. (Exactly what is sometimes defined by the courts, but generally, this means following the code and current standard of care.) Second, they must follow the obligations of their contract with the owner. After reading the posts on this thread, I have to agree that I have no sympathy to reps and manufacturers providing poor service. However, ultimately we have to serve the client's best interest, even if it means holding our nose while we do it. Certainly it's fine to explain the scenario of the lousy rep to the owner, but I would expect their decision to follow the money in nearly every case. On the other hand, how often does a substitution request come with an offer of money back? Not too often, in my experience. So where's the owner's incentive in that situation? Russell W. Wood, CSI, CCS Senior Member Username: woodr5678 Post Number: 82 Registered: 11-2003 Posted on Thursday, March 29, 2007 - 09:25 am:    Obviously you do not work in the public sector where we have sunshine laws, where claims and protests by our builders/manufacturers are a reality of life, and where auditors or Administrative Court Judges scrutinize your every move. We would never be allowed to delete a manufacturer from our specs for the reasons you suggest above. Are you familiar with the pain/pleasure syndrome? Well similarly, we as spec writers must be aware of what I call the risk/benefit syndrome. Meaning whenever we are approached with a substitution request, we must always weight the risks and benefits afforded to our Owner by the proposed substitution. If the risk is not increased and greater benefits are reaped the Owner by acceptance of the substitution...then in fairness to your Owner...how can not be in favor of the substitution?