What Did We Learn About Substitutions?

January’s Panel Discussion on Substitutions at the Denver Chapter CSI meeting included an owner’s rep, a general contractor, a subcontractor, an architecture firm’s construction contract administrator, and a specifier. Here’s some of what we learned.

Many owners welcome substitutions.

The biggest divergence of opinions was about owners’ positions on substitutions. The loud and clear message from the owner’s rep was that owners welcome substitutions, and that many are frustrated with architects’ and specifiers’ reluctance to entertain substitutions. In the eyes of the owner’s rep, there are two crucial things – cost and schedule. Since time is money in construction, schedule is very important to owners, so even a substitution that costs more money but saves time is likely to be favorably received by an owner. Owners wish that more architects and specifiers understood the overall impact of substitutions, time- and money- wise. (It’s important to note that the owner’s rep on the panel primarily represents developers, and recent projects have been multifamily residential projects.)

The specifier pointed out that for private work, substitutions can be good because they give the design team an opportunity to evaluate things they may not have evaluated when they first prepared the documents.

The subcontractor thinks that substitutions are an opportunity for the owner to get a better value. With the developments and changes in products and assemblies that happen all the time, architects and specifiers can’t keep up. Subcontractors, who are specialists in their areas, can keep up, and may be able to offer better solutions.

But some owners don’t want substitutions.

The specifier reminded us that many owners, especially in the public sector, want what they know has worked, and do not want substitutions. Owners such as municipalities, public school districts, and universities may own and maintain many buildings, and need maintenance procedures to be the same from building to building. Public owners’ requirements are sometimes outdated, however, and the specifier does not always have the opportunity to explain to the owner that several of their listed acceptable manufacturers no longer exist.

Substitutions scare architects.

Substitutions scare architects, and for good reason. They spend a lot of time designing around a particular product – that’s why that particular product is specified. Architects worry about how many details in the drawings will be affected – and will no longer be correct – because of a particular substitution. During the months-long design process, design decisions are followed all the way through everything that’s affected by them. There’s often no time to go back and do this again during construction. And when design changes have to be made due to a substitution, it is hard to be sure one has gone back and checked every possible thing that could be affected, as was done when the design was first developed. This is not only due to time constraints, it’s also because this is not how the design process naturally flows.

Architects also wonder if the owner is getting something of a lesser value on the project when a substitution has been accepted because the owner was attracted to cost savings. The architect knows that the owner is happy to be getting something cheaper, but the architect worries that the owner is giving up something of greater value or performance (the specified item), and the general contractor or subcontractor is the one actually saving more money on the substitution.

People have different ideas about what a substitution is.

Panelists agreed that different team members on a design and construction project do not agree about exactly what a substitution is. The general contractor pointed out that team members treat substitutions differently depending on the project delivery method. Substitutions are treated differently on hard bid (design-bid-build), negotiated (construction-manager-at-risk or construction manager/general contractor), and design-build projects.

The general contractor doesn’t want to receive substitutions submitted by subs on hard bid (design-bid-build) projects, because they are usually submitted to the general contractor without enough time to get them approved by the architect prior to the bid. The general contractor then has to decide whether or not to use the price associated with that substitution. If the general contractor is not the low bidder, it doesn’t matter, so there’s an incentive to use the price associated with an unapproved substitution. But if he uses that number and then the substitution is not accepted when submitted to the architect after the bid, he’s losing money.

On negotiated projects, the general contractor wants to see substitutions, get pricing, explain to the owner and the architect that if this product is used instead of a specified product, the owner can save money, or the schedule can be shortened. There’s more of a collaborative effort on negotiated projects.

The specifier (of course) read us the definition of a substitution from MasterSpec. It’s vague. Most of the industry probably agrees that “the devil is in the details” on this issue. We agree that a substitution is a change, but what kind of a change, and how a substitution is supposed to be evaluated, are where the differences of opinion and misunderstandings occur. The owner and design team need to define how casual or formal the process for evaluating substitution requests is. The specifier believes that part of his job is to define that evaluation process succinctly.

For better or worse, “or equal” is flexible.

The owner’s rep doesn’t mind the phrase “or equal” at all. Owners are looking for general contractors who are willing to “turn stones” and look for better options, and the phrase “or equal” in the specs allows for more possibilities.

The contractor says that “or equal” in a spec gives them more flexibility to look at the possibility of using an unspecified product in the bid.

Architects do not like the phrase “or equal” because it is open to multiple interpretations. There’s a lot of information that needs to be evaluated to see if something that is submitted is actually equal, so if someone submits on an “equal” that is not listed in the specs, this contract administrator asks for a substitution request.

The subcontractor likes the phrase even less than architects. He described it as two words in a specification that make subcontractors want to turn away and run as fast as they can in another direction. He thinks that if an architect goes through the exercise of heavily specifying one product that there isn’t an “equal” to that. He described “or equal” as a “cop-out” that allows way too much flexibility. (How is a sub supposed to know what is considered to be equal?)

The specifier does not use “or equal” in his specs, because the phrase is full of uncertainties. “Or equal… determined by whom?” he asked. He believes that the only equal to a product is the next product on the assembly line of the manufacturer who’s making it. “Equal” is too strict a term to be put out there to be determined by anybody. The specifier prefers a phrase like “Alternatives are welcome to be presented” along with a statement about who approves the alternatives. He believes it’s a more honest way to evaluate alternatives.

We got an interesting question at the end of the panel discussion from a chapter member about “or equal” and public work. Some government owners require that “or equal” be added to a list of products or manufacturers. We discussed different ways to define “or equal” in the construction documents, and procedures for evaluation. Some government entities do not actually define “equal,” or give any guidelines for procedures to evaluate “equals,” but still require that the phrase be included.

We’re not sure about “no substitutions.”

The owner’s rep would never advise an owner to require “no substitutions” in the spec.

When asked how much pricing is affected when competition is limited by specifying “no substitutions,” the general contractor responded that the problem is that you don’t know. The suspicion is that higher pricing does result when there’s no competition.  We’re in a competitive environment, and if someone is sole sourced, they may take advantage of that and bump up their price.

In the subcontractor’s experience, typically an owner doesn’t end up with higher prices when a sole source with no substitutions is specified. For curtainwall, pricing is only given to select vendors, and some can provide better pricing than others in bids, but their numbers probably won’t change based on how many manufacturers are named. Separate from the pricing issue is a service issue; the subcontractor mentioned that some vendors may have more leverage to get replacement products out on the jobsite faster than others.

The earlier a substitution request is made, the better.

Everyone generally agreed that the earlier a substitution request is made, the better.

The specifier pointed out that procedural requirements for substitutions that happen prior to the bid are not part of the contract documents – they’re part of the instructions to bidders. In these cases, approved substitutions are no longer substitutions at the time the contract is signed – they become part of the contract. Procedural requirements for substitutions that happen after the bid are part of the contract documents.  Also, substitutions that happen after the bid are divided into substitutions for cause and substitutions for convenience – requests for substitutions for cause are submitted when things are not available, manufacturers don’t make something anymore, etc. MasterSpec specifications software suggests that all substitutions for convenience should be received within a certain number of days after the construction contract is signed.

The owner’s rep’s projects typically have negotiated contracts, so don’t have hard bid dates. He said that as long as substitutions are decided upon prior to signing the contract, substitutions are fine.

The general contractor believes it’s best to require substitution requests to be submitted prior to the bid, but from a practical standpoint, it makes sense to accept some substitutions after the bid.

The architect’s contract administrator sounded somewhat resigned as she said that substitutions are going to happen before, and after, the contract is signed. It’s better to receive the substitution requests at the right time, before the bid. But even more important than timing is that the general contractor should actually review the substitution request before sending it on to architect (and not just stamp it and pass it on without actually reviewing it).

The subcontractor thinks that it’s good to receive substitution requests during and after the bidding process, because the project benefits from time for the team to collaborate. The best results, best pricing, best performance, best product can come out of collaboration. Any other way is subjective – just one person’s opinion. The project can get to a higher level with collaboration, with everybody involved.

Can we eliminate the substitution process?

A guest attending the meeting asked how we get rid of this substitution process. The subcontractor on the panel said that the only way to get rid of the substitution process is to write performance specifications instead of specifying products, manufacturers, or descriptions that point to specific manufacturers.

CSI’s Construction Specifications Practice Guide defines a performance specification as “a statement of required results with criteria for verifying compliance, but without unnecessary limitations on the methods for achieving the required results.” The book cautions that “an incomplete performance specification results in a major loss of quality control over the materials, equipment, and workmanship going into a project.” The criteria for verifying compliance need to be “capable of measurement, test, evaluation, or other acceptable assurances.”

In performance specifying, no products, manufacturers, or installation requirements are specified. Anything that can meet the required results, and whose compliance with the required results can be verified, meets the spec. In performance specifying, although a product is not named in the spec, it meets the spec if it meets the required results indicated in the spec. Even though it’s not named, a substitution request is not necessary.

Performance specifying transfers some design duties and control from the design team to the contractor team. It allows many more options to be presented to the general contractor. It takes some control away from the architect and the owner – if they don’t like the way something looks, they may not be able to point to the spec and say that something doesn’t meet the spec. If it performs the way the performance specification requires, it meets the specification, and cannot be rejected without a change order.

Thank you to the panelists: Tom DeBerard of DAE Construction Services, Stan Ward of Ward Construction, George Feathers III, currently of Curtain Wall Design & Consulting, Inc., Morayma Salas of Cuningham Group, and David Bishton of Construction Rx, LLC.

Deliberately Misleading

Today a new sign was installed for my office building, on the corner of the building lot. Depending on how fast you drive by, you may only see the first name on the sign. This first name, for a reason known only to my landlord, belongs to a company that hasn’t actually been a tenant in this building for almost 3 years.

It’s one thing to leave up old signs in the building that indicate that this now-relocated company is still upstairs. That might be due to laziness. But to put up a new sign is deliberately misleading, actually costs money, and leaves me shaking my head, or, actually, stalking around the office ranting about its senselessness.

This signage issue might not be such a big deal to me, except that I see misleading things in construction documents sometimes, too. I know how they got there – I know that design professionals use standard details or standard general notes or specification sections from project to project, and sometimes fail forget to edit them. Because of this, things are required by the documents that we don’t actually need for the project.

Remember, the drawings and the specs are contract documents. Along with the agreement, they make up the contract for construction. The contractor is required, by the contract, to provide everything indicated in the documents.

It may seem to the people producing the documents as if these errors, these things that indicate that something is necessary for the project even though it’s not, are minor errors of omission, like leaving up an old sign. They forgot to take them out, no big deal. But to the contractor, it is a big deal. The contractor doesn’t look at construction documents with the process of their creation in mind. The contractor looks at the construction documents as if they were created as the contract documents for this project – which is how they should be viewed.

Don’t inadvertently, or deliberately, mislead. For every project, check your general notes and your standard details to make sure they’re applicable. And don’t install brand new signs with old tenants’ names on them. Still shaking my head…

Another Case for Licensure and Regulation

Last week I had an experience that makes another good case for the licensure of architects and the regulation of use of the word “architect” and its derivatives.

I was chatting with a parent outside our kids’ after-school activity. She asked what I do for work and I gave my standard brief initial answer, “I’m an architect.”

She immediately told me her story. Her family is building an addition on to the house they recently bought. But they’re months behind with getting going on construction because of the first architect they hired.

After 3 months of working with the first architect, the drawings that they received for bidding to contractors couldn’t be built from – one bidder after another said he couldn’t build from those and needed other drawings. The night before the architect was planning to submit for permit, she checked the code, and found that the addition she’d been designing extended 5 feet into the setback. They’d have to redesign. My acquaintance went back to her with what the contractors said, she replied defensively that she “could do this,” she could submit the drawings and get a permit, this is what she does.

They fired her, and began looking for another architect.

Do the services provided sound like the services of someone who has worked for at least 3 years under the direct supervision of a licensed architect?

Not to me. But imagine the confusion of someone who has never hired an architect before.

Many single-family residential architects and designers draw more-constructible details, and are more familiar with building codes than many commercial architects (who have much more to learn about, and often, much bigger buildings to work on). They learn from working with experienced residential architects or designers, and from time spent on the jobsite. Less documentation is required for residential builders – contractors who do houses are used to building from pretty sparse documents. If they couldn’t build from what my acquaintance had given them, then those documents were pretty bad “construction documents.”

The services provided to my acquaintance sound to me like those of an unlicensed designer who hasn’t done any building envelope work, only interiors, and had no idea that she wasn’t competent enough to design an addition. She probably hadn’t worked under a licensed architect for very long, if at all.

(Only if you’ve worked for at least 3 years under the direct supervision of a licensed architect, and have passed your licensing exams, can you legally call yourself an architect.)

Knowing that my new acquaintance had moved to Colorado recently, I figured she didn’t know that in Colorado, you don’t actually need an architect for single-family residential work. Many Colorado home designers are not architects. Unfortunately, some of them imply to the public and to their clients that they are architects. Many of them did go to architecture school, and have degrees in architecture. However, a degree in architecture means only that you learned a lot of design and theory, and not much of the stuff you need to know in order to get buildings actually built. That’s why you have to work for at least 3 years under the direct supervision of a licensed architect (and pass your exams) before you can go out and offer architectural services to the public on your own. It’s actually possible that the designer my acquaintance hired is an architect, but just a really incompetent one. In my opinion, it’s much more likely that she’s not licensed.

I feel bad about the money and time lost by my acquaintance. But even more than that, I’m embarrassed to be associated with this “architect” in the mind of my new acquaintance, and in the mind of all consumers who have similar experiences. I’m embarrassed for all architects. People who are not competent at architectural services, and who call themselves architects, bring down all architects in the eyes of the public. Incompetent practitioners in all professions create a bad name for those professionals, of course. But in Colorado, we have a lot of people who are not competent at architectural services simply because of the fact that they do not have enough experience working under someone competent to actually take their exams – but they go ahead and call themselves architects anyway.

Why does this matter, beyond my personal embarrassment? I believe that consumers should be protected, and so do the people of Colorado. That’s why the profession of architecture in Colorado is regulated by the Department of Regulatory Agencies. That’s why the Colorado Revised Statutes (our laws) require that a person be licensed to practice architecture in Colorado in order to be able to use the titles “architect,” “architects,” “architecture,” “architectural,” or “licensed architect.” In addition, our laws require that a person be licensed to practice architecture in Colorado in order to use the words “architect,” “architects,” “architecture,” “architectural,” or “licensed architect” in any offer to the public to perform architectural services (this includes marketing materials and websites). (A person who is working under the supervision of an architect and is in the process of completing required practice hours in preparation for the architect licensing examination is explicitly allowed to use the term “architectural intern.”)

Residential designers are perfectly within their legal rights to design houses and additions to houses. Many of them are very good at what they do. But unless they’re licensed architects they’re not allowed to imply to their clients that they are architects. Licensure does not guarantee competence, but it sure can weed out the least competent.

 

Specs, Lost in Translation

Do you ever see funny notes in completed construction drawings? I’ve seen notes on CDs out to bid that said things like “Match Lakeview storefront” (when Lakeview must have been an old project), and “Complete sill detail” (pointing to an incomplete sill detail). These notes simply make no sense to the people using the drawings (the contractor and subs). But you and I know that what happened is that a brand new architecture school grad was given sheets of drawings that were marked up in red, and she just incorporated the redlines verbatim as if they were drawing notes to add, instead of instructions to the person picking up redlines, and then her work never got checked before issuing.

You and I know what happened with those redlines because we made the same mistakes when we were intern architects, and later, we saw the same sort of thing show up on redlines we prepared for someone else.

In my work as an independent specifications consultant, I prepare the architectural specification sections for the architect, based on the drawings and the architect’s design decisions. I ask some questions. I make some decisions based on my experience and technical knowledge. I give the specs to the architect for review.

I partially prepare the structural-related sections based on the drawings, and pass them on to the structural engineer for editing, completion, and review.

I receive the completed Mechanical/ Electrical/ Plumbing (MEP) engineering spec sections from the engineers and incorporate them into the project manual with the other sections.

At the MEP firms, I sometimes deal primarily with administrative assistants. Sometimes the project engineers prepare the sections in Word and give them to the assistant to turn into PDFs and send on to me. Sometimes the assistant prints out the office masters on paper, the project engineers mark them up with red pen (or red pencil, for some reason), and the assistant does the word processing, turns them into PDFs, and emails them to me. And sometimes… I’m not sure exactly what happens over there.

This practice of handing off specs to an administrative person to process has been going on forever. Sometimes, in the olden days, the secretaries in an office were the only people who knew how to type, so this hand-off of specifications preparation was a very natural practice. Also, people used to actually cut (paper) and paste (with glue) to produce construction documents, including specs. It would be silly to have a project architect spend time doing this type of work for specs, so secretaries used to do this work. After many years of doing this, some assistants gain an incredible amount of technical knowledge.

There’s nothing wrong with this hand-off practice, when you have a careful engineer and a good assistant, or you have an extra-conscientious engineer and a decent assistant, or you have a decent engineer and a truly fantastic and experienced assistant. There’s nothing wrong with this practice when an experienced design professional is reviewing the work. Sometimes, I think, we have less-ideal situations, though.

Sometimes, the MEP specs have funny mistakes in them – things the engineer would know weren’t right, but an administrative assistant wouldn’t. Whoops – looks like the engineer didn’t do a final review after the assistant did the word processing. This is kind of like the situation with the intern architect and the redlines. When someone without technical knowledge (an emerging professional or an administrative assistant) is inputting markups, the person who created the markups ought to be reviewing the final document before it’s issued.

An administrative assistant may or may not have any idea what’s going on with the markups on the MEP specs. With specs, maybe even more than with drawings, if you mess up one word, you can totally change the meaning of the document.

As I heard an engineer say last week in a presentation, “If you’re only looking at the drawings, you’re only looking at half the project.” The contract for construction, a legal document, is made up of the owner-contractor agreement, the drawings, and the specifications. Who prepares your architectural specifications, which are half of the contract? How much time is spent on them? Are the right people working on them, or reviewing them? If you’re not giving input, and answering the specifier’s questions, are you at least reviewing the specs? Are experienced people with technical knowledge (and knowledge of the project) making the decisions and preparing or reviewing the final specification documents, or… not?

Minor incorrect items in drawings can be funny (“complete sill detail” pointing to an incomplete sill detail). But minor incorrect items in specs have the potential to cause major problems. There’s greater risk when your spec redlines get lost in translation. Review them, like you review your drawing redlines, or have them prepared by an experienced specifier who will know what all your markups mean.

Shoegnome Hit the Nail on the Head

Jared Banks (you might think of him as Shoegnome, as I do) hit the proverbial nail on the head in his blog post yesterday. His post “You graduated from Architecture School and want to be called Architect” illustrated for me the main reason that I am so displeased by the formal use1 of the word “architect” to describe people who are not licensed architects.

Jared points out in his post that the question in the profession about who gets to use the term “architect” may be “just the symptom, not the illness,” and that “Perhaps the real problem isn’t who should be allowed to be called an architect. It’s actually that the value of architects has eroded.” Building owners are finding architects to be less valuable than they used to find them. I hate to be reminded of this.

When “architect” doesn’t mean much anymore, because architects provide less value than they used to, there are fewer objections to broadening the field of people who are eligible to call themselves architects.

Compounding yesterday’s displeasure, that morning I had read the text of the National Design Services Act, which was written by the AIA and the AIAS “to try to help alleviate this massive accumulation of debts for architecture students.”  It’s being sponsored in the House by Ed Perlmutter, a Congressperson from my state, Colorado.

The bill currently defines an eligible participant in the loan relief program as an “eligible architect” and defines “eligible architect” as an individual who “has completed an accredited masters program in architecture; or is an intern architect who has completed an accredited masters program in architecture and is enrolled in the Intern Development Program of the National Council of Architectural Registration Boards.” Here’s the text of that bill.

In other words, the bill defines “architect” as a person with a masters degree in architecture. Even the AIA, this country’s primary professional organization for architects, misuses the word “architect.”

The AIA is writing legislation that misleads our legislators and the public by ignoring the fact that under state laws, a person can’t be called “architect” without a state-issued license to practice architecture. (Oddly, the AIA also doesn’t seem to believe that a person with a 5-year professional degree, a BArch, should be eligible for loan forgiveness – the bill currently only addresses masters degrees.)

How is THIS advocating for architects?

This doesn’t help with the perception of the value of an architect. If everyone who finishes school gets called “architect” by the AIA and our federal lawmaking bodies, while under state law only those of us who have licenses can call ourselves architects, mixed messages are being sent. “You just have to get through school!” “You have to get through school, actually get some experience, pass some tests, and be willing to take on some professional responsibility!” Which is it? State law is clear. I believe federal law is silent on the matter, but will no longer be if this bill passes.

As I wrote to my senators and representative, the profession has problems, and one problem is that many grads have huge debt, but this bill is a bad idea that may further the problems of the profession by allowing schools to continue to charge more tuition every year, and deliver less of value to architecture students every year. Schools turn out architecture graduates who are nowhere near equipped to produce construction documents that buildings can be built from, but schools seem to be telling their grads that they’re ready to practice as full-blown architects upon graduation. That’s simply not true, and it’s not how our profession is set up.

Internship, the years between graduation and licensure, is an essential part of our training in this profession. Schools teach lots of design and theory, and a tiny bit of building technology and construction documentation. We are supposed to learn these practical things on the job. Producing construction documents is absolutely essential to the job, to the profession, as described in state licensing laws. But schools gloss over that, and some lead students to believe that they can just hire someone to do technical things like construction documents for them.

This National Design Services Act bill indicates that people straight out of architecture school can do a number of things, including “Assessment of the safety of structures that are in disrepair or have been damaged as the result of natural or manmade disasters.” I don’t want people right out of school doing this type of assessment in MY community. They are simply not qualified. (I may not be qualified. I’m an architect [licensed for over a decade], not an engineer.)

It’s not too late to find ways to return value to our profession. And I know where to start. Architects need to get more technical, and architecture firms need to keep technical expertise in-house or under their umbrella. By “get more technical,” I mean that architects need more building code expertise, an understanding of building technology, comprehension of building science, and expertise in effective construction contract administration. These things are no longer emphasized in many practices, and are rarely addressed in schools, but this knowledge and these skills are where the value lies for owners, for communities.

This knowledge, these skills, and the responsibility and liability that come with a license are what separate competent licensed architects from designers, architectural graduates, and kids with software programs. And we shouldn’t all be called by the same name.

 

Notes:

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1. By formal use, I mean use by newspapers, professional organizations, local government candidates, and architecture firms. I do not mean use during cocktail party conversation, or use by 19-year-olds explaining their college majors.

 

Inconvenient Assemblies

I’ve dealt with some inconvenient exterior wall assemblies lately.

Although two recent projects had to comply with the 2012 International Energy Conservation Code, the nature of their exterior wall assemblies made achieving continuous insulation difficult in both projects, and made achieving a continuous air barrier difficult in one project. Energy calculations indicated that we did need continuous insulation on both; there was no getting around it.

In these projects, the insulation and air barriers were afterthoughts.

So the construction documents for both projects show some unusual applications of rigid insulation, and for one project, show an unusual application of an air barrier coating. It can all work, it can all meet the code requirements, but these situations may not be ideal for construction.

How did we get here? I believe that the exterior wall assemblies were dictated by the owner in one case and by the design-build contractor in the other case.

Owners and contractors aren’t required to be familiar with building codes. The person responsible for interpreting the building code and making sure that the construction documents comply with the code is the architect.

Whether the architect or someone else initially selects wall assemblies, the architect needs to verify code compliance, early in the project. And don’t forget that IECC! The earlier in the project that you take all code requirements into account, the more convenient for everyone, from architect to cost estimator to insulation installer.

 

 

 

“Or Equal”

equal symbol2“Or Equal” is the most confounding phrase in construction documents.1

It means something different to everyone. Sometimes it’s defined in the documents. Sometimes it’s not defined in the documents, which means that the documents are relying on a generally-accepted understanding of the meaning. The problem is that “Or Equal” means different things when defined on different projects so there’s really no generally-accepted understanding of the meaning.

If “Or Equal” is defined, the definition, or description of procedures, should be somewhere in Division 01 of the specifications. In addition, it’s likely to be somewhere in Division 00 of the Project Manual, usually in the “Instructions to Bidders” form.2

In Division 01, the most likely place to find the definition of “Or Equal” is Section 01 60 00 “Product Requirements.” That’s the place to start, anyway.

The major confusion that I’ve seen among people3 dealing with “Or Equal” is the question of when “equals” can be accepted.  The document that defines “Or Equal” should indicate when they can be submitted on, and how and when they can be accepted.

Recommendation for the contractor team:

If “Or Equal” is used in the construction documents, look it up in the documents for the project. Find out its definition for each project. Make no assumptions on a new project. Understand that the definition may differ from project to project. A tip: use the “find” function in the software you’re viewing the electronic documents with, and search for “or equal” in Divisions 00 and 01.4

Recommendation for architects and specifiers:

If you are going to use “Or Equal,” properly define it in the construction documents. (If the owner uses it in the procurement and contracting requirements, you need to use it.) Use the definition the owner uses. If you can’t find one in the owner’s documents, ask the owner about this. Understand that you may have to expand on the owner’s definition in order to make it clear to the contractor team. Understand that if you are working on a project with a general contractor on board prior to completion of the construction documents, such as a Construction-Manager-at-Risk/Construction-Manager-General-Contractor project, the CM may be issuing instructions to bidding subcontractors, and you should make sure that these do not conflict with the owner’s definition of “Or Equal.” This is part of the architect’s job.

Recommendation for owners:

Figure out if you want to allow “equals” or not. Figure out if you want them to be treated as substitutions or not. Figure out if you want to allow substitutions-for-contractor’s-convenience after the contract is signed or not. (Remember that substitutions-for-convenience after the contract is signed are usually not allowed on public projects, because it’s not fair to the bidders who did not win the contract.) Then communicate this to the architect, whether the architect asks for this info or not.

The way I work (this is kind of long-winded, so you can skip from here to the bottom if you want):

Except where specifically included in an owner’s requirements (either in procurement requirements, in contract documents, or in instructions to the design team) I do not use the term “Or Equal” in my project specifications.5

For unnamed products by manufacturers that I name in the specs, I use the term “Comparable Products” and specify that submittals for these products are due at the time that the submittal for a named product would come in, during construction.

For unnamed products by unnamed manufacturers, I use the term “Substitution” and, except on projects in which the owner wants substitution requests to be allowed during construction, I indicate that substitution requests must be submitted prior to the bid and will be accepted in the form of an addendum, which will be issued to all bidders.

The latest project I had on which the owner used “Or Equal” in the procurement requirements was a project at Colorado State University. CSU uses State documents. The State’s definition of “Or Equal” includes “Any material or equipment that will fully perform the duties specified will be considered ‘equal,’ provided the bid submits proof that such material or equipment is of equivalent substance and function and is approved, in writing.  Requests for the approval of ‘or equal’ shall be made in writing at least five business days prior to bid opening.  During the bidding period, all approvals shall be issued by the Architect/Engineer in the form of addenda at least two business days prior to the bid opening date.”

Since that’s exactly how I treat substitution requests, in Section 01 60 00 “Product Requirements” I indicated “Or Equal:  For products specified by name and accompanied by the term ‘or equal,’ or ‘or equivalent,’ or ‘or approved equal,’ or ‘or approved,’ comply with requirements in Division 00 Document ‘Procurement Substitution Procedures’ for submitting a substitution request to obtain approval for use of an unnamed product.  These substitution requests must be submitted at least 5 days prior to the bid date.”

The full procedures were indicated in Document 00 26 00 “Procurement Substitution Procedures” in the project manual. That document again defined “Or Equal,” indicated that they had to be submitted prior to the bid, and also defined Procurement Substitution Requests as “Requests for ‘Or Equals,’ and other changes in products, materials, equipment, and methods of construction from those indicated in the Procurement and Contracting Documents submitted prior to receipt of bids.”

So, what does “Or Equal” mean? Whatever the contract documents say it means.

It comes down to this: Owners should define “Or Equal.” Architects and specifiers should explain it. Contractors should look it up. We just need to communicate.

Notes:

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  1. “Or Approved Equal” is equally confounding, and can be substituted for “Or Equal” in this post.
  2. The Colorado Office of the State Architect calls the form “Information for Bidders” instead of “Instructions to Bidders.” Sometimes these instructions aren’t included in the Project Manual, but are instead issued separately, either by the owner or by a Construction-Manager-at-Risk/Construction-Manager-General-Contractor.
  3. By “people” I mean the whole freakin’ team. Owners are confused. Architects are confused. Engineers are confused. General Contractors are confused. Subcontractors are confused. Vendors are confused.
  4. On your computer keyboard, hitting the Control key at the same time as the F key will usually bring up the Find function. It works in Microsoft Word, PDF readers such as Adobe Acrobat Reader, and web browsers.
  5. Sometimes engineers sneak “Or Equal” into the project specifications, though.