substitution question

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    Julie Brown

    Assuming that the Contractor provided carpet ABC in the form of a submittal that Mr. Architect reviewed, Section 3.12 would apply. Also refer to Section 4.2.7 for the limitations of the Architect's submittal review responsibilities.

    The short answer --if the carpet was submitted correctly via a submittal review-- is that it's the Contractor's fault that the carpet was not of the quality set forth in Mr. Architect's specification.

    If the Contractor *literally* proposed the substitution verbally, with no formal submittal, just his word... then you might be in trouble for not requesting the substitution in writing or in the form of a submittal package.

    I'd also go back and double-check the cleaning/maintenance instructions of the installed product to confirm that it did not prohibit steam-cleaning. Because if the Owner didn't follow the product's care instructions, it's his fault the carpet is two shades lighter.

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    Kurt Fanderclai

    Julie -- I think you might've missed where the Architect approved it in the example -- seemingly without checking the specs until after the fact.

    "you approve it..............You go back to your submittals and take a closer look to find that carpet ABC does not meet the same specifications as XYZ. "

    Taking the example as written, the Architect had a duty he/she chose not perform.  Sounds like the Architect allowed a skipping over of the substitution procedures commonly found in Division 01 (of his/her own spec!).  Tough to pin that on the Contractor.

    FYI -- detailed cost, quality, performance, etc. comparisons are typically required via Div. 01 so that an architect can make an informed decision.

     

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    Julie Brown

    Kurt,

    I did note that the scenario says the Architect approved it, but rom my reading of A201, Submittals are not Contract Documents, and if the Contractor did not specifically inform the Architect that the substituted product deviates from the specified product's specifications, it doesn't matter if the Architect did not catch the discrepancy in his review. {I mean, it matters, because now the Owner is dissatisfied, but it doesn't place the fault on the Architect.}

    The correct action definitely should have included checking the substituted product against the specified BEFORE approving anything, and only AFTER directing the Contractor to follow the proper substitution request channels that you mentioned-- Division 01 specs all the way!-- should the Architect review the substitution.

    My response to the example was to directly answer: we got bad carpet, who's fault is it? You could still arrive at this scenario even after following the proper substitution request procedures. Let's say the Architect did get a Substitution Request, he compared the data, but failed to notice that the substituted product was lacking a color-fast finishing process (or whatever criteria would result in carpet losing its color with steam-cleaning). He's still covered by 3.12.8.

    That's my take, but without a more specific scenario and background, it's hard to make an absolute determination. {unless the Architect didn't get ANYTHING in writing and just let the Contractor buy and install some other carpet based on a conversation or even an email, then that's definitely the Architect's bad. Always procedure and paperwork!}

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    Kurt Fanderclai (Edited )

    "He's (the Architect) still covered by 3.12.8."

    In a sense, it's the complete opposite of that.  In that section, the Contractor must do two things when it domes to deviating from the contract req's:  inform the Architect, and get written approval.  (For the sake of the example -- I assumed approval to mean written, as I think you did as well.)  So, the Contractor seems to have done his/her part according to this section.

    I think the sections you've posted are important and do address all things submittals, but aren't addressing substitutions, which as we agree is in Div 01, and is what the contractor was requesting in the example.  

    A contractor substitution request essentially says, "This product falls outside of the list of products listed in the drawings and specs.  However, for these reasons, I would like to use this product, and I need your Architect's assistance and approval in determining if this product similarly meets the requirements."

    If the Architect had no responsibility in this "or equal" determination of the quality of the product, then the Architect's approval would be meaningless.  What would be the point? 

    Good discussion.  

    Julie, where are you at in the exam process?

     

     

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    Julie Brown

    We really need more specifics to assert a final determination. It's all about when the substitution was approved, and how, and whether there was a credit back to the Owner that reduced the contract amount.

    I was approaching it from a scenario where a substitution had already been allowed, going through the whole Division 1  procedure and submitting a Substitution Request form and supporting data. In that form, the Contractor should have already ascertained that the proposed substitution is equivalent or superior to the specified product. (If he didn't point out a deviation at that point, where the color-fastness is lacking, it doesn't mean it's the Architect's fault if the Architect doesn't catch that.) The Architect is approving the request to substitute a product, they're not approving the product itself, yet. Once a Substitution Request form gets approved, it's at that point that the Contractor is allowed to send the Architect a submittal package with all the product data, shops, etc. The Architect should then fully review the product against his specifications (one month after the building is open is too late for that!) and return the submittal with review comments or "No Exceptions Taken". Given that the example states that a review of the specifications reveals that the product is not up to snuff, the submittal should have been rejected. So it doesn't look great that the Architect approved the submittal. But I still feel that, as a submittal review, the Architect is covered under 3.12.8. Yeah, there were two opportunities for the Architect to catch the deviation, but that doesn't mean that it's entirely his fault. The Contractor didn't catch it either, or didn't disclose it, and he submitted paperwork that said the product WAS equivalent. 

    If we were to back way up though, Kurt, you've highlighted the much more important part of the process: the Substitutions themselves. There are specific processes for addressing Substitutions at varying points in the project: when they happen, how they happen, if they're minor or major, there are lots of considerations that affect how the Architect should respond. I think we both agree that your first glimpse at Carpet ABC should not be when the submittal package comes through for review and you were expecting XYZ.

    I've completed the exam process. :) I just pop in the forums occasionally to see if I can be helpful and sometimes volunteer input when I feel like subjecting myself to the instant feeling of self-doubt about whether I actually know anything when I click 'Submit', haha.

     

     

     

     

     

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    Kurt Fanderclai

    Julie -- 

    "I've completed the exam process. :) I just pop in the forums occasionally to see if I can be helpful and sometimes volunteer input when I feel like subjecting myself to the instant feeling of self-doubt about whether I actually know anything when I click 'Submit', haha."

    I completed the process as well.  However, I can't seem to break the habit -- I see an email pop up, and I just....can't.....resist....!

    Congratulations on having the ARE in the rear view!

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    Mitulkumar Patel

    Julie, Kurt,

    Let me start by saying, congrats on passing the ARE. Kurt, I've come across multiple treads where you have clarified and explained things and for that I really want to thank you on behalf of everyone still on the ARE boat.

     

    I think Julie might be close to hitting the nail on the head with relying on 3.12.8.  This isn't a real world example so, I don't know what would happen anyways... more then likely it would be lawyers to fight over.  This was something that just popped in my head as i was reading the A201.  But thank you both for clarifying and continuously helping your fellow Associates in becoming Architects!   

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    Kurt Fanderclai

    ." You go back to your submittals and take a closer look to find that carpet ABC does not meet the same specifications as XYZ. "

    Your example described this happening AFTER approval. The architect in your example did not check the specs and requirements before signing off -- a willful choice by the architect.

    Which, amounts to a shirking of duty on the Architect's part. Which, caused damage to the Owner. Which, should be starting to sound a lot like a word no architect wants to hear.

    3.12.8 isn't a cure for negligent behavior.

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    Stephen Meier

    What happens (& what should follow) if the Architect stamps a submittal as approved when in actuality they have marked it up (should be approved as noted)?

     

    As the contractor is at fault if they do not call out deviations to the architect when they send them a submittal, is the architect also at fault in the event that they do not call the Contractor's attention to additional revisions that are required? 

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    Mitulkumar Patel

    You Shouldn't be approving submittal anyway. You should be taking no exception... lol. To answer your question... as long as you have clearly noted on the submittal the changes, the contractor should be submitting the revised submittal to his subs... its highly unlikely they didn't look at your markeups. Also your approval would be to the submittal as a whole, markings and notes included. You saying approved as noted is you just being nice enough to give them heads up...
    -mitul

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    Stephen Meier

    I see, just our way of expediting the process to avoid resubmittals. 

     

    I've heard the various opinions on the verbiage that belongs on stamps (approved/ reviewed/ no exceptions taken), what is the background/reasoning why "approved as noted" is not what should be done? Contractually speaking, I'm seeing the word approved.

     

    A201:

    B101:



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