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Proprietary Specifying 202 - Professional Judgment in Product Selection

By Kevin O'Beirne, PE, FCSI, CCS, CCCA, CDT posted 10-28-2019 09:32

  

Editor's Note: CSI is pleased to publish this fifth blog from Kevin O’Beirne, PE, FCSI, CCS, CCCA, CDT. If you have an idea or opinion you would like to share with your colleagues in the construction industry, please contact CSI Content Strategist Peter Kray at pkray@csinet.org. He would love to help publish your thoughts.

 

Involvement of manufacturers and product representatives during materials and equipment evaluations, short-listing, and throughout the design stage is critical. However, each participant in the design stage should recognize the interests and drivers for the other participants. 

 

Among these, the chief interest of manufacturers and product representatives (collectively, “suppliers”) is probably sales. It is very common for suppliers to encourage the design professional—or to attempt to have the owner influence the design professional—to include proprietary and descriptive requirements in the specifications, often to achieve the supplier’s goal of sole-sourcing. Design professionals and specifiers should always be aware of this. In public work, to comply with the letter and spirit of public procurement laws and regulations, design professionals and owners should resist the temptation to include such restrictions in the specifications, whether knowingly or unwittingly.

 

Design professionals must carefully consider suppliers’ assertions of performance and obtain appropriate, documented verification of performance claims relative to the material’s or equipment’s performance in the completed project and have the potential to reduce competition. Sound, accepted principles of engineering science and architecture should be employed in such evaluations and emotional reactions should be avoided to the extent practicable.

 

Of importance to the design professional and their professional liability insurer is that, regardless of the information furnished by suppliers, if the material or equipment does not perform as intended for reasons other than a bona-fide manufacturing or installation defect, the architect or engineer—whose professional seal and signature are applied to the basis-of-design documents and the construction drawings and specifications—may be held accountable by the owner. A design professional’s excuses such as, “the manufacturer orally promised me two years ago,” “the product representative said that the materials were appropriate for the application,” or that, “the equipment will perform adequately under these conditions,” are likely to find an unsympathetic audience. Specifying products appropriate for the application is one of the reasons why the owner hired the engineer or architect in the first place.

 

Accordingly, the design professional should recognize the importance of obtaining from suppliers accurate, complete information that the design professional critically considers (in accordance with the standard of care in the associated professional services agreement) and retains in the project file. Critical assumptions should be vetted through experienced personnel trusted by the design-professional-in-responsible-charge and should be documented in the design professional’s project file. Engineers and architects should avoid requiring that installed materials and equipment regularly perform at extremes of their typical operating range.

 

The typical standard of care in architects’ and engineers’ professional services agreements requires design professionals to perform their services with the same level of skill and care exhibited by other, similar design professionals performing similar services in the same locality as the project. The typical standard of care does not require design professionals to independently verify suppliers’ claims of quality and performance, but an experienced architect or engineer will endeavor to verify certain performance aspects of materials and equipment vital to the project’s outcome.

 

This principle was tested in a 2016 court decision, William H. Gordon Assocs. v. Heritage Fellowship, United Church of Christ (Supreme Court of Virginia, 016-6-008, Record No. 150279), in which the court found that an engineer relied too heavily on a product manufacturer’s published literature. It appeared the engineer exercised insufficient professional judgment in product selection and, most importantly, installation requirements, for a critical system designed by the engineer. In many cases, such as the R-value of insulation or the published performance curves of standard pumps, design professionals are likely entitled to rely on manufacturer’s published literature, regardless of the decision in the Gordon case. Furthermore, the Engineers Joint Contract Documents Committee (EJCDC), in Paragraph 6.01.D of EJCDC E-500—2014 and 2020, Agreement between Owner and Engineer for Professional Services, provides the following:

 

  1. Reliance on Others: Subject to the standard of care set forth in Paragraph 6.01.A, Engineer may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers, and the publishers of technical standards.

 

In written guidance to its clients in 2016, a leading professional liability insurer, the Victor O. Schinnerer Company, applauded the EJCDC provision copied above and advised including similar language in architecture and engineering agreements.

 

Ultimately, there is no substitute for an experienced design professional who understands the materials and equipment they specify and the intended service environment in which the installed items will exist and operate.

 

While the advice of suppliers is extremely valuable, design professionals need to exercise their own professional judgment in product evaluations, selection, and specifying. When appropriate products are identified, the specifications must be clear, concise, complete, correct, and coordinated with other elements of the construction documents. For public work, compliance with laws and regulations on competition is essential.

 

Proprietary specifying can be a very powerful tool, but also comes with potential pitfalls, especially in public work. In using this double-edged tool, the specifier and design professional should be well aware of its advantages, drawbacks, and limitations and prepare the design and specifications accordingly.

 

Copyright 2019 by Kevin O’Beirne

The content of this blog post is by the author alone and should not be attributed to any other individual or entity. No part of this blog post constitutes legal advice; readers should consult with qualified, experienced legal counsel.

 

Kevin O’Beirne, PE, FCSI, CCS, CCCA is a professional engineer licensed in NY and PA with over 30 years of experience designing and constructing water and wastewater infrastructure for public and private clients. He is the National Manager of Engineering Specifications for HDR, a global engineering and architecture design firm. He is a member of CSI’s MasterFormat Maintenance Task Team and is the certification chair of CSI’s Buffalo-Western New York Chapter. He is an ACEC voting delegate in the Engineers Joint Contract Documents Committee (EJCDC) and lives and works in the Buffalo NY area.  Contact: kevin.obeirne@hdrinc.com.

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Ronald--Thanks for reading the post and providing comments--these are always appreciated.  Your comments seem to perhaps focus more on the topic of submittal reviwes than on the design professional's exercise of professional judgement in selecting and specifyign products for the project.  Admittedly, submittal reviews are an important, expensive, and necessary quality assurance process in construction, but one that was not addressed in any of this blog's "Proprietary Specifying" posts.  It's a great topic for a future series of blog posts, though.
As a Contractor it is smart business to assure submittals are in all respects contract conforming before submitting to review team.  Sub Contractors are notorious for not reviewing submittals and relying on the their suppliers/other subs to provide conforming material.  Re-submittals are time consuming and can create schedule overruns.  Time is money not recoverable.

On government agency contracts it is common for reviewers to reject non-conforming submittals with out much comment other than "does not conform to the specifications"  I have been one of those reviewers and did not enjoy being the Contractor's Quality Control Manager. 

As a reviewer, do not get caught bypassing the Prime Contractor and trying to deal with the submittal originator.