Warranties

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Author Message Gerard Sanchis Senior Member Username: gerard_sanchis Post Number: 26 Registered: 10-2009 Posted on Thursday, June 23, 2011 - 10:43 am:    I am trying to identify the types of warranties that most of us specify. For instance what is the difference between manufacturers’ and installers’ warranties. Can we get a workmanship warranty from any product manufacturer? What are warranties if not insurance policies? Why do we need them? For instance, why do we not require warranties for structural steel and we do for roof membranes? I would think that structural steel is more important for life and safety. Once we specify them, are they easily enforceable by the owner – I think of all the exclusion clauses found in roofing and waterproofing warranties -- and what do they achieve? Also, even though we specify replacement of overburden for failed waterproofing systems, overburden replacement is always excluded from the warranty; so what we get is a bucket of material left at the curb. Wouldn’t it be in the owner’s interest in the end to have a full time clerk of the work, as in the old days, rather than spending money buying warranties? Richard Howard, AIA CSI CCS LEED-AP Senior Member Username: rick_howard Post Number: 251 Registered: 07-2003 Posted on Thursday, June 23, 2011 - 12:25 pm:    Gerard, that is a great post. You seem to know what you are asking, but it is, nonetheless, provocative. Warranties are designed to limit the liability of the manufacturer, hence the term "limited warranty". In many cases, the Uniform Commercial Code imposes a "warranty of merchantability" that would be of more value to the owner than the warranty offered by the manufacturer. For roofing and waterproofing, we used to have bonds that were held against possible claims of failure. That was a cost added to the project and served as insurance against a loss. Today, warranties for these products are typically shared between the installer and the manufacturer, with the installer having responsibility for issues that show up the first three years, then the manufacturer takes over from there. The assumption being that defects due to labor would show up during the earlier period and then the liability would go the the manufacturer. It probably is neither prudent nor necessary for the specifier to spell out this third-party relationship in the specifications. Structural steel is specified by reference standard and the products are less a concern than the field connections. We have code-required special inspections for connections that exonerate the erector. The design engineer is the person left holding the bag for the structure. We all know that knowledgeable, full-time, on-site representative would be invaluable to the owner's interests, but we also know that owners rarely want to spend the money required to do it right. Gerard Sanchis Senior Member Username: gerard_sanchis Post Number: 27 Registered: 10-2009 Posted on Thursday, June 23, 2011 - 12:59 pm:    Richard, Thanks for the answer. Few specifiers are aware of the effect the UCC has on what we specify. One question I meant to ask is: What is the correlation, if any, between warranty and durability? That is, do we ask for extended warranties for systems or materials that have a limited life and not for those that we know will not deteriorate to a point where they need to be repaired or replaced during the expected life of a building? Doctor Who (Unregistered Guest) Unregistered guest Posted on Thursday, June 23, 2011 - 01:39 pm:    It may be true that few specifiers are aware "of the effect the UCC has on what we specify" because the truth is that there really isn't that much impact on what we specify related to our service to the Owner in developing Contract Documents. The Project Resource Manual devotes very little attention to the subject (unfortunately). I know from speaking with attorneys that Owner/Contractor agreements render the provisions in the UCC largely moot where Owner is looking to the UCC for remedy. And so, I do worry about it much. Why? Because a construction contract is really a services contract, and not a procurement contract strictly for goods. For a really good summary of this go to this link and scroll down to Mclaughlin and Jensen (December 1994): http://cset.mnsu.edu/cm/students/aic-study-guide/level1lprojectadmin.pdf Here is a really good article about the UCC and Contractor's relationship with subs (but, again, not my problem - nothing to do with the specs): http://www.smithcurrie.com/assets/attachments/32.pdf The UCC does apply to FF&E agreements, because those are all about purchase of goods.... Robert W. Johnson Senior Member Username: robert_w_johnson Post Number: 156 Registered: 03-2009 Posted on Thursday, June 23, 2011 - 02:01 pm:    I for one very seldom specify (few exceptions) manufacturer's product warranties for reasons Richard notes - most of them protect mfgr more than they do the Owner. See PRM or Practice Guide for a discussion of warranties. I used to quote some of the great limitations from actual mfgr limited warranties to CDT/CCS classes - the absurdity of some of them got the student's attention. Of course the first thing that almost everyone of them states is that it deletes the UCC provisions as the UCC allows them to do. If using AIA documents you have unlimited warranty (not under federal FAR) and one year correction period. I use extended or special warranties on selected work results including labor and workmanship - roofing and waterproofing being prime examples with extended period, defects, and corrections spelled out - they are in reality an extended correction period beyond 1 year. Mfgr Waranty versus durability - Remember the long warranties provided by some of the new single ply roofing mfgrs in the early days - how good were they as those companies went out of business - don't need to say any more than a mfgr's warranty is only as good as the longevity of the company is. The rating of the mfgr is just as or more important than the warranty itself. Good companies of long standing will stand behind their products no matter what the warranty provisions are. Their reputation is at stake. Richard Howard, AIA CSI CCS LEED-AP Senior Member Username: rick_howard Post Number: 252 Registered: 07-2003 Posted on Thursday, June 23, 2011 - 02:34 pm:    The industry tends to over emphasize the importance of warranties. I used to work for an architect who liked to say that a roof warranty never kept a building dry. When I have looked into the difference in requirements for a roof, the longer warranties often require a thicker membrane or a cover board, or an inspection by the manufacturer's local rep; all generally things that would enhance performance or assure quality. However, I don't think you can rely on a direct correlation between warranty term and product duration. I think there is a lot of over-promising for a marketing advantage beyond what you can reasonable expect in actual performance. The more a manufacturer stresses his warranty rather than the product, the less inclined I am to want to see it on my project. NRCA has data on the life expectancy of various roofing types, but it is not detailed enough to demonstrate the value of a more robust installation. The roof membranes used today compared to 40 years ago (gosh, I hate to admit to going back that far) are that they are mostly designed to be disposable, whereas the old BURs were intended to be around as long as the building itself. Building owners are no longer accustomed to regular preventive maintenance to prolong the roof, they just budget for replacement. J. Peter Jordan (Unregistered Guest) Unregistered guest Posted on Thursday, June 23, 2011 - 03:41 pm:    For many products, what is really needed is some sort of workmanship warranty from the installer. There are some products out there but there are mostly poor product selections (product works great in application A and B, ubt won't work in X, but it would look so good in application X that the designer won't be talked out of it) or bad workmanship. I have been saying for some time that I would rather see a mediocre product put down by a good installer than a really great product put down by a poor installer. I like the mention of the UCC, but the fact is that UCC warranties pass from the manufacturer to the purchaser (which will either be the distributor or the installer) not to the end user unless there is some language that someone is using. I also like the discussion of the limited warranties. I have increasingly been asking about warranties from manufacturer to the Owner. Most of them will provide replacement material or, in some cases, repair material. This does not necessarily include shipping to the project site and is almost always does not include installation. Now, picture a building with 40,000 sq. ft. of slab on grade and a bank of two or three elevators in the center. No manufacturer I know will issue a warrantee that will replacing failed waterproofing at the elevator pit. They will try to fix it from inside the building. No matter tightly you word the specification language on waterproofing warranties, it is unreasonable (to the poiint of insanity) to expect anything more. At this point, good field observation and some sort of field quality control before backfilling may be much more important than any warranty one gets from the manufacturer. Dr. Who (Unregistered Guest) Unregistered guest Posted on Thursday, June 23, 2011 - 01:47 pm:    And here is more - from a recent article/summary on the topic written by a construction law attorney which includes this statement: "The Uniform Commercial Code's implied warranties of merchantability and fitness for purpose do not normally apply to construction contracts between owner and contractor, because those contracts are considered contracts for services rather than goods. Therefore, every contract for construction of any improvement or the installation of major equipment should contain the general basic warranty of quality. The elements of this warranty are: (i) materials and equipment will be new and of good quality; and (ii) the materials, equipment and labour furnished will be free from defects and conform with any design requirements." Link to full article here: http://www.internationallawoffice.com/newsletters/detail.aspx?g=610fa8ca-21fb-4d26-b9fb-3aa7abf405a2 J. Peter Jordan (Unregistered Guest) Unregistered guest Posted on Thursday, June 23, 2011 - 04:30 pm:    Dr. Who notes two basic provisions of "quality warranties" which are contained in the AIA A 201, but stated a little better. Materials are supposed to be new, unless otherwise indicated (like reused or recycled materials in "sustainable projects") and free from defects not inherent in the materials (like the knots in knotty pine paneling or the boat patches in many grades of plywood). Be careful what you ask for especially when you really don't want exactly what you asked for. Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 394 Registered: 10-2007 Posted on Friday, June 24, 2011 - 11:30 am:    In response to the statement "Structural steel is specified by reference standard and the products are less a concern than the field connections. We have code-required special inspections for connections that exonerate the erector. The design engineer is the person left holding the bag for the structure." I see warrantees as more appropriate for products but not for materials such as steel. You might want a warranty if there was a significant concern that the product might not have the expected life span due to the actions of the manufacturer or installer. I have never seen warranties used for structural materials or products. Disagree that the code required special inspections exonerate the erector. If the erector did not comply with the construction documents the general conditions make it clear that the contractor is still responsible. Unless the structural engineer did something stupid like signing a warranty he is not responsible for the defects of the contractor rather he is responsible for his instruments of service. It is also important to note that with rare exceptions it is the Owner not the structural engineer that hires the special inspectors. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 1165 Registered: 07-2002 Posted on Friday, June 24, 2011 - 11:56 am:    one in a while - not very often -- we do hear about an actual material failure. Not the connections, or the joints, but the material itself. I saw one a few years ago, when the office I worked for was trying out an experimental concrete mix that allowed a lot of forming flexibility. It worked fine... and then after about five months, it spontaneously disintegrated into dust. And we were very happy it was the mockup that disintegrated, not the proposed building. But other than the new, weird stuff, we do rely on materials standards to ensure performance of basic materials. And the trade associations help with that effort. they want their materials used, which means that they want the performance to be reliable and predictable. Richard L Matteo, AIA, CSI, CCS Senior Member Username: rlmat Post Number: 424 Registered: 10-2003 Posted on Friday, June 24, 2011 - 01:05 pm:    Anne - That's a great argument for doing mock-ups! We always did them at my firm back east - during design, and again prior to actual construction. Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 395 Registered: 10-2007 Posted on Friday, June 24, 2011 - 03:00 pm:    Anne I would be interested in understanding what was unique about the experimental concrete mix you mentioned. Tim Werbstein, AIA, CSI, CCS Senior Member Username: tim_werbstein Post Number: 38 Registered: 09-2006 Posted on Friday, June 24, 2011 - 03:15 pm:    I agree strongly with J. Peter Jordan, " I would rather see a mediocre product put down by a good installer than a really great product put down by a poor installer." However, a poor installer may also write a glowing warranty—not aware of his own incompetency. For important work, I'd add or beef up the installer-qualifications requirement and require a submittal. (Aside) I once rejected a "limited warranty" for paint because the manufacturer's standard exclusions included any paint if the can had been opened! Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 1166 Registered: 07-2002 Posted on Friday, June 24, 2011 - 03:59 pm:    One of the reason we did the mockup on that job was that the managing partner of the firm had some reservations about the claims for the material and he just wanted to watch it for a while. regarding the concrete mix: it was a copyrighted, patented mix and additives, so even if I did know I couldn't have said what it was. The concrete was extruded through a mold into board-like shapes (2" x 12") and it remained plastic for a couple of hours, allowing it to be draped over a form into curvy shapes. Then when it cured, the foam form was taken out, leaving the draped, woven concrete. Richard HIrd (Unregistered Guest) Unregistered guest Posted on Saturday, June 25, 2011 - 02:36 pm:    Although I agree with the problems and pitfalls mentioned above, I have always wondered about my liability when I delete a warranty. It may be not in the Owner's interest, but when S_H_F occurs everyone is looking for a scapegoat. Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 396 Registered: 10-2007 Posted on Saturday, June 25, 2011 - 05:11 pm:    Richard Legaly you are not liable under the standard of care defense if you exercised the standard of care espected by other architects in your jurisdiction. Note this means you must use an appropriate level of care in selecting and specifying the work. This does not neam that you have to do it the way others do it. When the shit hits the fan people will invent all sorts of rational about what you should have done. You cannot possibly have anticipated all of these expectations so why try. Just focus on doing a good job. One strategy to limit your liability exposure is to let your client know where you are recommending waranties and obtain his input. Phil Kabza Senior Member Username: phil_kabza Post Number: 478 Registered: 12-2002 Posted on Monday, June 27, 2011 - 02:15 pm:    A reason to not rely heavily on installer warranties is that subcontractors seldom have the financial resources to underwrite their warranties, short of purchasing a project bond. Another reason is the tenuous existence of the subcontracting firm. For that reason, manufacturers often get into the act even when a manufacturer warranty is not required, by bonding their installer firms in order to sell their products. A school district client is ferocious about requiring manufacturer extended warranties on about two dozen Arch/MEP items. They employed a staff person full time to manage their warranty program. I've often wondered if their annual collected claims totalled their administrative costs. One positive reason to require manufacturer warranties for certain items is the extent of manufacturer engagement that comes with it. For some work, the manufacturers become cautious about the installer firms they will write those warranties for; they also want to be on the jobsite frequently to reduce their warranty risks; both results benefit the owner. Jim Sliff Senior Member Username: jim_sliff Post Number: 68 Registered: 08-2010 Posted on Tuesday, June 28, 2011 - 05:24 pm:    I apologize for the length of this post - but I did not want to leave anything out. There many problems with warranties that I've found most Owners (and many Specifiers) are not aware of wanted to try to cover as much as possible. You might just print it and save it for reference...heck, *I* don't want to read it! ;-) "When the shit hits the fan people will invent all sorts of rational about what you should have done. You cannot possibly have anticipated all of these expectations so why try. Just focus on doing a good job." Having been on the Specifier, contractor and manufacturer sides of the warranty issue I think that is an excellent summary. Under the "standard of care" defense (based on my experience) I tend to reject almost all warranties, and if an owner or property manager demands one I mention that I will need to write a "non endorsement" letter stating the warranty was an owner decision made against my recommendation. That usually ends it, especially if I can explain "real life" to them: Warranties appear for two reasons: 1) because the owner or A/E wants one, and/or 2) a manufacturer dangles one as a sales tool. Gerard, extended warranties are a manufacturer's invention. For example, 25 years ago we rarely saw warranties for deck coatings, elastomeric wall coatings (both part of my little niche) or roof *coatings* (roofing yes, but not coatings). But someone...it's long forgotten who...decided to offer a "10 year warranty" on professionally-applied systems only; then some manufacturers printed huge "!0 YEAR GUARANTEE!" on can labels, initiating implied warranties in the consumer market. Not to be outdone, a competitor went to "15 years" and the dominos started falling. Heck, I'm seeing 50-year warranties tossed around. And I have actually seen one proposed 100-year warranty! It's a monstrous can of worms. These "Extended warranties" ("container warranties" have different conditions, but are just as ridiculous) for the most part require inspections at specific intervals and subsequent maintenance of the installed product if necessary (this is universal, not limited to paint/waterproofing). The maintenance - which will ALWAYS be required, since the "inspection" is performed by the manufacturer, is NOT free; it's also not sent out to bid. It costs whatever the manufacturer and installer want it to cost! Where there's a chance a product might not *need* maintenance the manufacturer will charge for the warranty up front - a specific fee tied to the $$ value of the order. In other words, you can pay now, or pay later...but you WILL pay! And what you are paying for may not be necessary - because if you want your warranty to continue, you are at the mercy of the manufacturer. The fine print - almost every warranty I've seen for construction products covers only one or two things: 1. Replacement of failed product/parts, and only the specific failed "part" - NOT an entire assembly, layer of deck coating or whatever AND NOT THE INSTALLATION. 2. Material/equipment as above plus the labor to install it; but NOT TO ACCESS IT, as I'll describe below. "Material warranties" cover only the first part - and the idiocy of the scenario is this - What good does it do for an owner to be given a quart of paint with which to repair 5-6 blisters 20 stories up, or a gallon to replace the coating on an anodized storefront? Material-only warranties are inevitably useless to an owner. But as a sales tool they work - I'll admit to at least curiosity if someone mentions a 50-year warranty. A labor and material warranty also includes the repair work. On **the affected ares(s) ONLY** (or to replace the steel screws with stainless, or whatever very specific item is covered and not one thing more). BUT - there are universal disclaimers that require the owner to provide access to the area, surface, equipment etc. If a below-grade waterproof membrane has failed, that means the owner will have to demo enough of the nice new parking lot to gain access (and slope it to meet OSHA requirements) so the contractor can install one square foot of sheet membrane. Negative-side repairs might work fine and be less expensive - but they're not covered; ONLY the original item or its replacement (if discontinued) is covered. So the $3,800.00 helicopter rental to lift a 2-ton HVAC unit to fix a busted conduit under it is on the owner's dime - the warranty covers $12 in parts and $77 labor. OR the owner might need to bear the cost of draining a 12-acre pond, demo of 1' of concrete (and rebar), 6' of excavation and then replacing all that stuff after a manufacturer paid $80 in gas and time to have a tech guy spend 10 minutes fixing a 1"opening in a seam. These are not exaggerations - these are typical of conditions I've encountered in warranties. The labor and material warranty, by the way, is issued by the manufacturer - the contractor/subcontractor is not a party to it. The labor is provided through a specific contract (or handshake) between manufacturer and contractor/subcontractor, not contractor and owner - so ALL claims run through the manufacturer, and all verification of claims runs through them as well! Terms such as "unforeseen conditions", "acts or omissions of the purchaser (usually a subcontractor) or any party(ies) other than the manufacturer...", "...and if after inspection by the manufacturer's representative (insert manufacturer's name here) determines there is a product defect..." (the wolf guarding the henhouse...), "...but under no circumstance shall the replacement cost, including labor and reasonable calculation of inspection costs, exceed 3x the cost of material/equipment/widget(s) originally installed in/on the affected area/equipment" ad nauseum. I used to be one of the "black hat" guys. I wrote warranties and performed inspections as an employee of well-knownn manufacturers. The very simple fact is this - a warranty is created for the sole purpose of protecting the manufacturer. Period. The longer the warranty, the more loopholes and conditions are included. Report a problem as soon as you "discover" it? Disallowed - it had to be reported within 10 days of occurrence (and sorry, but the fine print requires monthly inspections...oh-oh...missed that, huh?). Equipment didn't operate quite right 10 days after substantial completion...but a couple of kicks and there were no more problems. Until it failed after 7 years, which is no big deal because you have a 20-year, no-limit warranty! Except the first incident was noted in the manufacturer's files - oops again - it had to reported within 10 (or 30, or whatever) days. Denied! As a project manager for a contracting firm, I loved warranty jobs - unless the manufacturer didn't know "the game". As long as they did I had no worries. This did NOT mean I would allow poor workmanship - but I had peace of mind, as I knew I was protected from expensive claims. From a Specifier's viewpoint (and as a knowledgeable owner) a warranty is not worth the paper it's printed on. I would MUCH prefer inspections at various stages of the job (no matter WHAT type of product is involved). Eyes, a camera and a written report are far more valuable than a piece of paper with more holes in it than Swiss cheese. Last - if you forget or ignore everything else, remember this one point - 99% of the warranties that cover a time period over 10 years will NEVER be "actionable". Because somewhere in the 7-10 range...often earlier...the warranty will be lost, personnel will change and nobody will have a clue there ever WAS a warranty. And with warranties that do not have a specific cost tied to them, over half (this is anecdotal but based on my dealings with many manufacturers and general contractors) are never part of the project closeout AT ALL - they're completely forgotten. Gerard Sanchis Senior Member Username: gerard_sanchis Post Number: 28 Registered: 10-2009 Posted on Tuesday, June 28, 2011 - 10:14 pm:    Thank you all for your wisdom and for sharing your experience with those who participate in these discussions. My post (and reason for posting it) is that I love being an agent provocateur. It very often elicits answers on areas and subjects that I hadn’t thought about, such as the explanation Richard Howard gave us on limited warranties. After much research and many phone calls, the following is what I discovered: Q: I am trying to identify the types of warranties that most of us specify. For instance what is the difference between manufacturers’ and installers’ warranties? A: The difference should be obvious, one is for materials and seldom workmanship, and the second is for workmanship but often covers materials; these warranties are usually for 2 years. There are exceptions to the above. Some manufacturers will provide extended warranties for labor and for materials. Q: Can we get a workmanship warranty from any product manufacturer? A: See above for answer. Q: Why do we need them? For instance, why do we not require warranties for structural steel and we do for roof membranes? I would think that structural steel is more important for life and safety. R: Mentioning structural steel was meant to illustrate how difficult it is to find a global answer to questions on warranties. However the corollary is still valid. Q: Once we specify them (the warranty), are they easily enforceable by the owner – I think of all the exclusion clauses found in roofing and waterproofing warranties -- and what do they achieve? Also, even though we specify replacement of overburden for failed waterproofing systems, overburden replacement is always excluded from the warranty; so what we get is a bucket of material left at the curb. R-1: To the first question I’d like to get a facility or building manager’ or an owner’s to describe his or her experience in enforcing a warranty. R-2: To the second question, I found that placing an overburden over 6 inches or mud set pavers, or a concrete slab over a WP membrane shortens the manufacturer’s warranty considerably. Pedestal-set pavers are acceptable for extended warranties. Q: Wouldn’t it be in the owner’s interest in the end to have a full time clerk of the work, as in the old days, rather than spending money buying warranties? A: Yes and probably cheaper in the long run. I also found that all the manufacturers’ warranty that I’ve looked at are labeled “Limited Warranty.” If an owner were to accept such a warranty, he’d have to forgo all other recourse he or she may have against the manufacturer whose product failed. Also, all the limited warranties I read restrict the manufacturer’s liability to furnishing new materials – they do not include labor! So what good is it to the owner of a facility with a failed liquid-applied waterproof membrane to have pails of urethane coating delivered at the curb? To recap, with few exceptions, a 2-year labor and material warranty from a reputable subcontractor may be the best deal for the money for a facility owner. Robert W. Johnson Senior Member Username: robert_w_johnson Post Number: 157 Registered: 03-2009 Posted on Tuesday, June 28, 2011 - 11:29 pm:    The reason for the term "Limited Warranty" is because of the UCC - the seller is stuck with required warranties under the UCC unless the seller issues a "Limited Warranty" that disclaims the UCC warranties that the buyer accepts - that's why you see the "Limited Warranties on the packaging or included with the instructions - you accept the package and you have accepted the Limited Warranty. The UCC also allows the "Limited Warranty" to include limitations and exclusions which allows the manufacturer to protect itself more than the buyer per the above discussion. It is amazing to me that all of the above discussion on warranties is limited to manufacturers and subcontractors. Anybody remember that the Owner has a contract with the Contractor that usually includes a warranty. With AIA documents that is an unlimited warranty with a one-year correction period. Why is an extended warranty (or extended correction period) on particular work results with the Contractor not in the discussion? You can also require a warranty to be signed by the Contractor, installer, and manufacturer to try to ensure that someone will be there to respond. If you do it with just the Contractor, it is now his business on how he passes the liability on down to the installer and manufacturer. Jim Sliff Senior Member Username: jim_sliff Post Number: 70 Registered: 08-2010 Posted on Thursday, June 30, 2011 - 02:15 pm:    Wording of warranties is tricky, and unfortunately most are copy-and-paste documents with bits and pieces "borrowed" from competitors' documents, often by somebody in marketing with no legal oversight; I've seen entire warranties created by simply performing a "find and replace" in Word to change the manufacturer's name. Smaller companies usually have owner involvement, and he may include completely unenforceable wording (without realizing it) simply because he wants a particular requirement included. But even the "big guys" can produce warranties that don't undergo legal review (until there's legal action). Almost all include things like: "...(manufacturer will, it its option, repair or replace (unit, gadget, material) determined to have failed due to defects in manufacturing or raw materials, subject to other terms of this warranty and/or required by applicable law(s)..." Now add (if it's a part, gadget, piece of machinery) "...FOB (somewhere in the world)." or - "in sufficient quantity to repair failed (whatever the covered item is). In the first example you have to ship the thing...whether a bolt or a 2-ton air compressor...to the manufacturer. Often nothing is stated about how you get a new or repaired widget back. In the second, good material will be supplied to replace material ***in the spot that failed*** - even though ALL the product is defective. The "curb warranty" at its worst. The determination of what is "defective", as defined in the warranty, is almost always required to be made by the manufacturer (The fox guarding the henhouse). A determination of "defective product" by a third party isn't applicable - if the manufacturer says the product is OK, it *is* ok. Then there's the issue Bob raises regarding the parties involved. In my experience written warranties are requested (as required in the Specs or as a sales tool) by the subcontractor, but parties named are the manufacturer and owner. The warranty creates a new contract between owner and product manufacturer - the contractor is out of the loop if there's a problem and the sub is involved only if the warranty covers BOTH material and labor. Even then, there are two types of "material and labor" warranties: 1. Warranties that cover defects in material AND installation problems, and 2. Warranties that cover only material defects, but *include* replacement labor. There's a huge difference and it's a card-trick game played every day. If possible the sub will submit a "replacement labor only" sample warranty no matter what's required and only submit a "real" labor warranty if caught. Labor sections of warranties also require inspections by the manufacturer. But those are performed by the sales rep who calls on the sub. I can't begin to count the number of times I've discovered those "inspections" listed on a log were picked from a calendar during lunch in some coffee shop - after project completion. The rep isn't going to bite the hand that feeds him. Gerard, to answer one question you had - the manufacturer generally issues the labor and material warranty and all claims run through the manufacturer. In only a few cases have I seen separate warranties (one from the manufacturer, another from the installer). No matter what product is involved a two-warranty system would be a hornet's nest and a finger-pointer's dream. There is a separate contract, sometimes, between manufacturer and sub that ties the sub to the warranty (it's becoming more common because the subs see it as better protection for them...ans usually they are correct). Usually there's not, and the reason is simple - there are so few claims against warranties they are primarily written (other than to protect the manufacturer, which is foremost) for approval in the submittal stage. After the warranty has been cleared before the job starts about 1/3 (at least in the case of coatings and waterproofing) are actually issued as part of closeout, and of those most are lost or forgotten. During casual discussions with my attorney, who represents various parties in construction - large property owners, contractors, a few manufacturers and as I recall a few Architects - the number of warranties actually kept on file and needed is only slightly higher for equipment and "tangible" items; the one category that usually does have a warranty carried through the entire process is roofing. I agree that for the most part a "clerk of the work" would be far more effective and cost effective - the ridiculous thing about the whole "warranty game" is that owners are paying for something that they almost never use. Bob, to answer your last question, contractors cannot get an extended warranty from a manufacturer - they don't buy the product and they are not the ultimate owner. Since approved or certified installers are normally required by the manufacturer, the contractor would be put in a position of either tying the original installer to the warranty...essentially the same as the existing system...or having to source an alternate installer, which creates a huge mess of complications. It's something that's come up several times on projects I've been involved with and quickly dismissed as a legal and administrative nightmare. The only way warranties can be made effective is to write the required terms (and/or exclusions that are not acceptable) into each Section, improve the review of submittals in regard to warranties and have a specific party responsible for all final warranty review/collating before final payment is made. But it is an expensive proposition. Robert W. Johnson Senior Member Username: robert_w_johnson Post Number: 158 Registered: 03-2009 Posted on Friday, July 01, 2011 - 01:02 pm:    Jim "Then there's the issue Bob raises regarding the parties involved. In my experience written warranties are requested (as required in the Specs or as a sales tool) by the subcontractor, but parties named are the manufacturer and owner. The warranty creates a new contract between owner and product manufacturer - the contractor is out of the loop if there's a problem and the sub is involved only if the warranty covers BOTH material and labor." I, with a few exceptions, do not require manufacturer's warranties because of all the issues raised in the discussion above. For the most part, they may make people feel good, but they are not worth much. I require the extension of the warranty or the correction period on some work results - note work results not products. You use the general term "warranty" but what you are really talking about is "manufacturer's product limited warranties." There are warranties besides "manufacturer's product limited warranties." "Bob, to answer your last question, contractors cannot get an extended warranty from a manufacturer - they don't buy the product and they are not the ultimate owner. Since approved or certified installers are normally required by the manufacturer, the contractor would be put in a position of either tying the original installer to the warranty...essentially the same as the existing system...or having to source an alternate installer, which creates a huge mess of complications. It's something that's come up several times on projects I've been involved with and quickly dismissed as a legal and administrative nightmare." Under AIA documents we have an unlimited warranty and a one-year correction period - that is a provision of the Construction Contract between the Owner and the Contractor. The burden of proof becomes much more difficult under the unlimited warranty beyond the one-year correction period, but it is still possible to make claims. The Owner does not have any contractual relationships with the subcontractors or the manufacturers. The Contractor has contracts with the subs but not the manufacturers except for products he purchases and installs himself. How do defective work results get corrected during the one-year correction period? Does the Contractor do them himself? No unless it was his own work. Why do the subs get involved? Because of the provisions of the subcontracts. Why does the manufacturer get involved? Because of the purchase agrement between the subcontractor and the manufacturer. Ok, now we take the one-year correction period, and we extend it on some work results to 2, 3, or 5 years by provisions in the Contract Documents. Do I consider the length of available manufactuer's warranties in determining the extended time? Yes I do. This again is a provision in the Construction Contract between the Owner and the Contractor. How are the relationships between the Owner, Contractor, subcontractor, and manufacturer any different because the correction period has been extended? It has nothing to do with the Owner or the Contractor getting an extended warranty from the manufacturer. Who is ultimately responsible? The Contractor. Does the Contractor make sure the liability is passed on down to the subs? Sure he does just like he does with the standard one-year correction period. The relationships do not change just because you have an extended correction period on some work results. Under this type of arrangement, the A/E and Owner are setting the terms of the extended warranty, not the manufacturer. The terms of the limited warranties of manufactuers are not part of the this type of warranty. Let them play their games elsewhere! Jim Sliff Senior Member Username: jim_sliff Post Number: 72 Registered: 08-2010 Posted on Friday, July 01, 2011 - 02:38 pm:    Bob - Excellent points. If we saw more attention paid to the AIA documents and unlimited warranty there would be a natural progression towards consistency. It'd make the whole "warranty" issue NOT an issue - just a normal part of the process. I used the general term "warranty" as that term is used in an all-encompassing way by most Owners, Architects, contractors, subs and manufacturers. In my direct experience and observations when someone, somewhere in the construction process either specifies, requests or offers a "warranty" there is little or no differentiation noted between manufacturer's extended warranties and unlimited warranties (the unlimited warranty seems to rarely come up, although the one-year correction period is a "gimme"). I'm trying to present a viewpoint "from the trenches" - years of document preparation/processing, precon meetings on various sides of the table and observation of what really happens once a project is underway. Reality is not part of the Construction Documents. ;-) Might be a good candidate for new Section.... Reality - either the Owner/Architect as a "team" wants a specific warranty or a manufacturer/sub "team" tries to sell one to get a specific product on the job. There are other scenarios, but these two seem to be the overwhelming reasons we see the darned things at all. The contractor is in the middle and on the hot seat as the one with the prime contract. I've been amazed at how few read terms past "20 year limited material and labor warranty". They receive a document with that title and pass it through. And sadly most are approved - whether the assumption is made that the contractor did his job screening them or there's pressure to keep things moving (and terms are not read closely...or problems ignored) many "non-compliant" documents end up a part of the project. But as noted previously, few claims are ever made against them. And unless a manufacturer or sub is trying to use one as a sales tool, the reaction of most subs bidding a project is laughter followed by looking at specified manufacturers and comparing their history as far as cooperation...and cost. The only liability thoughts on the part of the sub are focused on manufacturer's dollar-limits and who determines "fault" (and how...). Another issue - and perhaps something that should be in another thread entirely - is that many contractors do not provide bidding subs with anything more than a set of plans (and often just a partial set) and what they perceive as "trade specific" Specification Section(s). Most will also include "Submittals" and possibly "Requests for Substitutions". But they may be missing critical parts of the Project Documents. The sub and the manufacturer may never see warranty requirements unless they request (and buy) a full set of documents. Also, many subs who DO receive full sets don't bother to look for anything beyond the one or two sections that relate to their work (many don't have a clue WHERE to look anyway). It's dumb, I know - but it's reality. I agree completely with your reasons for not using them and wish more projects handled warranties through the contract documents you mention. The "normal" system is so fragmented, contradictory and useless (except to a manufacturer as a sales tool - THAT part, no matter how irrelevant it may be in practice, works in many cases) that except for your use of the AIA documents I tend to agree with Gerard's thought that maybe we're better off with no "extended warranty" at all. Robert W. Johnson Senior Member Username: robert_w_johnson Post Number: 159 Registered: 03-2009 Posted on Friday, July 01, 2011 - 06:13 pm:    The system also works with other than AIA documents. Most other general conditions include a one-year warranty. You just extend the one-year warranty on selected work results. Why we habitually specify manufacturer's warranties is beyond me - we are just playing the manufacturer's games according to their rules. There are exceptions where the installation of a single product is not such an important factor or as crucial to a successful building. Shop applied PVDF coatings, insulated glass units, and interior wood doors are some examples. Those type of things are very different from a roofing or waterproofing system with multiple field installed components where both the materials and the installation are very important to a system to keep the building envelope from leaking on a long term basis. Why would you want a manufactuer's limited warranty determine what is a defect and the conditions/limitations of the warranty for a crucial building envelope system when there are other methods available where you and the Owner set the terms of the warranty? Doesn't make any sense to me. J. Peter Jordan (Unregistered Guest) Unregistered guest Posted on Friday, July 01, 2011 - 06:37 pm:    I am surprised at the discussion of the "one-year warranty" in the General Conditions. Although it is modified, the "one-year" period relates to a "correction period" for work which does not conform to the Contract Documents. Items needing such correction may not be "defective" from the perspective of a manufacturer, it just doesn't comply with the Drawings and Specifications. It may be "better" or it may not be as good; it just isn't what was drawn or specified. There is an option for the Owner to accept such work, but this has other ramifications; i.e., the Owner can't accept regular 1/2-inch gypsum board where fire-resistive construction (which requires 5/8-inch Type X gypsum board) is indicated and required by the authorities having jurisdiction. In this case, what has been installed is perfectly good stuff and may meet any warranty the manufacture may give; it just isn't correct (and isn't legal). It really doesn't matter if the Owner wants to accept it, it must be corrected. In this case, the Contractor's warranties come into play. These warranties are from the Contractor (not a manufacturer or an installer) and state 1) that the Work will be performed according to the Contract Documents, 2) products used in the Work will be new unless otherwise indicated (we can reuse that historic marble pediment that dates from the 1880s), and 3) products will be free from defects that are not inherent in the materials (we can use natural product that have knotholes or veins if that is what we want). These warranties are not subject to the one-year limitation. One of the tricks in all of this is that a manufacturer warrants a product that a 3rd party will install. That 3rd party is inherently not in a position to warrant materials, but may give some sort of warranty or guaranty for the installation. GM may be able to warrant materials and workmanship, but Contractors and their subs who want to give a warranty for materials and workmanship are really not in any position to take on this liability (especially the Contractor). What this really means in the best case scenario is that the Contractor will "service" the building for a period of time (at least a year, but in our market some Contractors will go 5 or 10 years), serving as a single point of contact if something goes wrong. It really isn't a warranty, but that's what it sounds like to an uninformed Owner (and Architect). Robert W. Johnson Senior Member Username: robert_w_johnson Post Number: 160 Registered: 03-2009 Posted on Saturday, July 02, 2011 - 12:35 pm:    AIA A201 3.5 Warranty: The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be of good quality and new unless the Contract Documents require or permit otherwise. The Contractor further warrants that the Work will conform to the requirements of the Contract Documents and will be free from defects, except for those inherent in the quality of the Work the Contact Documeents require or permit. Work, materials, or equipment not conforming to these requirements may be considered defective. AIA A201 12.2.2.1: In addition to the Contractor's obligations under Section 3.5, if within one year after the date of Substantial Completion of the Work or designated portion ......., or by terms of any applicable special warranty required by the Contract Documents, any of the Work is found not to be in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice ...... "Work will conform to the requirements of the Contract Documents and will be free from defects. The Contractor further warrants that the Work will conform to the requirements of the Contract Documents and will be free from defects" Is a leaking roof a defect? I think most people would say that it is, but to make it perfectly clear, I also so state under the Special Warranty. A watertight roof system becomes a requirement of the Contract Documents. "or by terms of any applicable special warranty required by the Contract Documents," I label my extended warranty (correction period) as a "Special Warranty" to correspond to the terminology of the General Conditions. The Special Warranties extend the one-year correction period and further define defects and corrections for the particular work result. I really do not care about any manufacturer's limited warranties except to keep my extended correction period within the time limits of available manufactuer's limited warranties. The Special (extended) Warranty is provided for in the AIA General Conditions. None of the contractual relationships among the parties is changed by a Special Warranty. The obligations of the parties under the one-year correction period are just have an extended time period for certain work results with defects and corrections further defined for that work result to make them a Contract Document requirement. I would not say the Contractor's obligations are to "service" the building under the correction period (one-year or extended) as defined by the AIA General Conditions. They would seem to say much more than that - "The Contractor warrants to the Owner..." "The Contractor further warrants ...." "The Contractor's Warranty ....." "The Contractor shall correct it promptly......." There is no mention of subcontractors and manufacturers in the AIA General Conditions regarding warranty or correction period obligations - they are obligations of the Contractor. Just as the Contractor is free to subcontract the Work as he sees fit, he is free to do the same with warranty and correction period obligations. If we stay out of his business in terms of subcontracts, why do we want to get in the middle of it in regard to warranties and correction periods? I have been an A/E, owner, contractor, and consultant during my career (not brave enough to try the subcontractor world). From my experiences as a contractor, I have a pretty good idea of what contractors do to pass on the responsibilities and liabilites of the Contract Documents to those that they have subcontracts and purchase orders with. Then there is a lot of hassle involved in the enforcing of those obligations (fun if you have the right personality). As an Owner and A/E, I would much prefer having the Contractor to deal with all that rather than get myself in the middle of it. Much easier to deal with a single party that you have a contract with where you have defined the requirements, than to now create multipe new warranty contracts with multiple parties especially when the UCC provisions for Limited Warranties put a lot of the control of the game in their hands. Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 502 Registered: 01-2003 Posted on Sunday, July 03, 2011 - 02:03 am:    "The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be of good quality and new unless the Contract Documents require or permit otherwise. The Contractor further warrants that the Work will conform to the requirements of the Contract Documents and will be free from defects, except for those inherent in the quality of the Work the Contact Documeents require or permit." Hmm... Something to think about when re-using materials. Without specifying that re-used lumber, or insulation, or whatever, is expected to perform the same as when new (or to some other standard), it seems the contractor is off the hook if something doesn't work. Simply requiring the use of used materials, without defining required performance, makes the designer liable. Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 398 Registered: 10-2007 Posted on Sunday, July 03, 2011 - 02:38 pm:    What happens if you require the reuse of existing products from an existing project as part of a Green/LEED mandate and it does not comply with the tests that you subsaquently had performed on them? Jim Sliff Senior Member Username: jim_sliff Post Number: 73 Registered: 08-2010 Posted on Sunday, July 03, 2011 - 03:16 pm:    Sheldon - the re-use issue is indeed a can of worms; reuse of one component might require changes in a dozen Sections and void "normal" manufacturers' warranties. Bob - I really like your approach to the matter (and appreciate you sharing it). Some great stuff to even for us oddball specialists. One thing might be a fly in the ointment, however: you mentioned "If we stay out of his business in terms of subcontracts, why do we want to get in the middle of it in regard to warranties and correction periods? " Many times the subcontractor IS decided in part by the Specifier. We commonly see specs requiring "certified installers", a term included because it's a requirement of the manufacturer. It's often an important requirement to avoid problems, but it can be manipulated in other ways. I've seen many situations where guide specs were supplied to an Architect or Engineer...and used as the basis for a Section...by a subcontractor or manufacturer with language ensuring that subcontrator is the only qualified one within 1000 miles. The contractor has no viable options - he either has to use what is essentially a "sole source" or jump through hoops to try to get a substitution approved. He usually won't hassle with it. With larger manufacturers "certified installers" have gone through some sort of training (usually) or are known to have extensive experience; with smaller manufacturers "certification" is often a "product" for them - a subcontractor has to pay to play (there's usually training involved but it's very often generic nonsense). This is not common in new construction but very common in large-scale rehab and building conversion work. In most cases it also involves products where extended warranties are part of the package, which is where it ties in to the quoted statement. When I was on the subcontractor side I had rehab projects where the situation became so obviously complicated prior to bid that there ended up being multiple prime contracts - the oddball stuff removed from the "primary" contract specifically to get the contractor out of the mix. I realize most Specifiers who deal with new construction may never encounter these situations, but some who deal mainly with rehab, historic restoration and mixed-use conversions see them (at least in my experience) on a regular basis. And even with all the chess-playing that goes on with extended warranties a part of the mix, the reality is (as noted earlier) that the documentation is rarely handled properly.