Court interpretation

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Author Message jerry o (Unregistered Guest) Unregistered guest Posted on Monday, July 29, 2013 - 03:22 pm:    Does anyone know of court interpretation of this? Mfg name and product are specified but specs call for performance that the product can not meet. Is the product acceptable? Is it only substitutions that must meet the performance? What if the mfg is listed with performance criteria. Then the mfg must meet specified criteria with a product. This is the usual case. J. Peter Jordan Senior Member Username: jpjordan Post Number: 590 Registered: 05-2004 Posted on Monday, July 29, 2013 - 04:00 pm:    This is where the spec writing rubber meets the road. Some products/systems are highly customizable and can be modified to meet the criteria. Other products cannot be modified. A specific window product that meets AAMA requirements for R-40 will probably not meet the specified requirements for performance at AW-90. You are not going to be able to tweak a suspended acoustical ceiling panel product that has an NRC of 0.55 to have an NRC of 0.90; these are simply different products. Quantities also come into play. A 100-sq.-ft. amount of stuff will not be as customizable as 10,000 sq. ft. (think resinous flooring or carpet. I use the phrase "Subject to compliance with requirements...", but I do think the Contractor should be able to rely on the specifications for a list of products that do meet the specifications a list of manufacturers that do offer products that will comply. It is incumbent on the specifier to do due diligence in this area. Of course, there is the posibility that by the time the product is ordered by the Contractor, the product is no longer available or it has been reformulated or the company is no longer in business... jerry o (Unregistered Guest) Unregistered guest Posted on Monday, July 29, 2013 - 04:25 pm:    My interpretation is if you list the mfg and model , that's what you bought the performance is secondary but you are not asking the mfg to remfg their product. If performance is key then the model should not be listed. Food for thought. Phil Kabza Senior Member Username: phil_kabza Post Number: 531 Registered: 12-2002 Posted on Monday, July 29, 2013 - 05:00 pm:    I'll just bet that this question has come up before, because 1) it's so easy to make this error, and 2) there's a paragraph in MasterSpec that addresses it. In 014000 QUALITY REQUIREMENTS, there's a "Conflicting Requirements" article that says that in the event of conflicting requirements, comply with the most stringent. So the Named Product establishes one requirement, and the Performance Requirement establishes another. Comply with the most strict. A court will assume that the drafter of a contract intended what they wrote, and the parties who signed the contract agreed with the contract's requirements. No interpretation required, unless ... and of course this never happens ... no product can meet the stated performance. I do agree with Peter though that under day to day specifying, "you named it, you bought it" should stand, and a knock down, drag out fight over a product conflict should only happen if the proposed product would have an egregious impact on the owner. That little phrase "subject to compliance with requirements" means just that; product characteristics are very often in flux, and if we had to check each product's current data sheet on a monthly basis, nothing would ever get built. But we should look at the data sheet least once before we send the project out the door. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 1360 Registered: 07-2002 Posted on Monday, July 29, 2013 - 05:11 pm:    I agree with both of my esteemed colleagues. we're getting into this now with the updated (horrible, badly thought out) requirements for LEED version 4. our folks thought that we just needed to state the requirement and "hope" that the specified products met it. I argued that if we specified it, we implicitly approved the product, regardless of the other specified criteria. our risk manager agreed with me about this, by the way. Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 590 Registered: 10-2007 Posted on Monday, July 29, 2013 - 05:57 pm:    My understanding is that if you list a specific product it is acceptable even if it does not meet the performance requirements. You might modify this interpretation by placing language in the project manual that defines how this would be resolved but if your project manual does not have the right language they can use the product you listed. J. Peter Jordan Senior Member Username: jpjordan Post Number: 592 Registered: 05-2004 Posted on Tuesday, July 30, 2013 - 11:23 am:    What I see all too often is that specific products are selected where a more generic (and non-proprietary) specification would suffice. One example is CMU. I see specs from structural engineers with specific manufacturers when all I want (and what I am going to get) is CMU that meets the ASTM C 90 specification. I have moved in some instances to delisting manufacturers for storefront for standard 2 by 4-1/2 inch products and specifying them to be thermally broken products. I will list manufacturers for gypsum wallboard, but it is because I want to limit the list to US manufacturers (we get some stuff from Mexico that I sometimes wonder about). Metal studs are another product where compliance with the standard is sufficient. We do a poor job of teaching why product selection is different from work result specification. Concentrating too much on a specific product in a situation where the product is really a commodity may result in a time-consuming conflict that really should not happen. Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 661 Registered: 01-2003 Posted on Tuesday, July 30, 2013 - 12:58 pm:    Another true tale of horror from the archives of Specs Gone Wrong... Window specifications were based on published performance data of three manufacturers. The three products were identified as basis of design. Some prior approval requests were rejected, as those manufacturers' performance data did not comply with specifications. Bids were opened. One of the basis of design products was the low bid (public sector project). Shop drawing submittals revealed that the window company's published performance data were incorrect, and the specified window did not meet its own specifications. Hence the "subject to compliance" clause. David J. Wyatt, CDT Advanced Member Username: david_j_wyatt_cdt Post Number: 5 Registered: 03-2011 Posted on Tuesday, July 30, 2013 - 01:24 pm:    Peter Jordan makes a good point. I also have engineers who list things like acceptable manufacturers of Portland cement, fasteners, form release agents, even moisture-retaining covers for curing. I don't care very much until I start receiving product data for that stuff come across my desk during CA. Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 592 Registered: 10-2007 Posted on Tuesday, July 30, 2013 - 04:14 pm:    Over the years the concrete admixture business has undergone a lot of changes with a number of firms being absorbed by other companies. This combined with the fact that many of the listed products have been in the engineers specifications for years means that many of the listed manufacturers and the products no longer exist. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 1363 Registered: 07-2002 Posted on Tuesday, July 30, 2013 - 05:41 pm:    its also possible for some commodity products to be made without much regard for published standards -- it doesn't take much to get some molds and make up your own concrete blocks -- Frank LLoyd Wright advised his clients to do that frequently. Using those blocks in a structural capacity is a whole other issue. I list manufacturers names for commodity products to indicate a basic level of performance and quality. Most of our commercial clients aren't interested in beta-testing some basic material item. Chris Grimm, CSI, CCS, SCIPa, LEED AP BD+C, MAI, RLA Senior Member Username: tsugaguy Post Number: 288 Registered: 06-2005 Posted on Wednesday, August 14, 2013 - 01:03 pm:    Doesn't the "comply with the most stringent" provision apply only to conflicting reference standards? That is the context under which it appears in MasterSpec 014000. Many years ago I considered expanding it beyond just reference standards for projects I was working on, but decided against that course of action, or else it might seem to allow for too much design-phase duties to not be completed and then become imposed upon construction-phase participants. Along with complimentary documents in AIA A201 is the provision of compliance with what is "consistent and reasonably inferable", so if we get into habits of not being consistent, this valuable clause won't be able to help defend design professionals as much. The court's position tends to be that the more specific controls the more general. So, if the problem is huge enough to go all the way into the court system (mind you, it is better and way cheaper to avoid that by having correct documents though!!!), which one is more specific? A list of manufacturers, or performance requirements? Seems like it would be the performance requirements, as long as they were actually edited for the project and able to be met by the required number of manufacturers given applicable procurement regulations.