Specifying Product Substitution Requirements

 

 

Specifying Product Substitution Requirements

 

Many Design Professionals (DP’s) have challenges on how to specify procedures for product substitutions correctly.  Building product manufacturers have limited background on specifying product substitution requirements and where the DP’s substitution requirements originate.  To correctly approach this subject, let’s define product substitutions:  

 

Substitutions areas defined by the DP’s approval of materials, products, or equipment for use in place of those specified.

 

To effectively control substitutions coming into the DP’s office during bidding and construction, procedural requirements for Substitutions must be clearly stated in the Project Manual that the DP prepares.

 

Do not confuse substitutions with Alternates: An “Alternate” or “Alternate Bid” is an amount stated in the Bid to be added to or deducted from the Base Bid amount if the corresponding change in the Work is accepted. So an Alternate is a formal request for a change in the Work, accompanied by an amount to be added to or deducted from the Bid amount.

 

 

 

Since many projects utilize standardized documents prepared by the American Institute of Architects (AIA), let’s see what those documents say about substitutions.

 

AIA A701-2018

 

AIA A701-2018– Instructions to Bidders: Fortunately, this document’s latest edition does a much better job covering substitutions than previous editions. Here is what the 2018 edition contains:

 

ARTICLE 3 – BIDDING DOCUMENTS

3.3   Substitutions

3.3.1   The materials, products, and equipment described in the Bidding Documents establish a standard of required function, dimension, appearance, and quality to be met by any proposed substitution. Where “brand name or equal” is stated in the Bidding Documents, the listing description is not intended to limit or restrict competition.

 

        3.3.2 Substitution Process

3.3.2.1 Written requests for substitutions shall be received by the Architect at least ten (10) days prior to the date for receipt of Bids. Requests shall be submitted in the same manner as that established for submitting clarifications and interpretations in Section 3.2.2. 

 

3.3.2.2 Bidders shall submit substitution requests on a Substitution Request Form if one is provided in the Bidding Documents.

 

3.3.2.3 If a Substitution Request Form is not provided, requests shall include (1) the name of the material or equipment specified in the Bidding Documents; (2) the reason for the requested substitution; (3) a complete description of the proposed substitution including the name of the material or equipment proposed as the substitute, performance and test data, and relevant drawings; and (4) any other information necessary for an evaluation. The request shall include a statement setting forth changes in other materials, equipment, or other portions of the Work, including changes in the work of other contracts or the impact on any Project Certifications (such as LEED), that will result from incorporation of the proposed substitution.

 

3.3.2.4 No request to substitute materials, products, or equipment for materials, products, or equipment described in the Bidding Documents and no request for addition of a manufacturer or supplier to a list of approved manufacturers or suppliers in the Bidding Documents will be considered prior to receipt of Bids unless written request for approval has been received by the Architect at least ten (10) days prior to the date for receipt of Bids established in the invitation for bids. Any subsequent extension of the date for receipt of Bids by addendum shall not extend the date for receipt of such requests unless the addendum so specifies. A statement setting forth changes in other materials, equipment or other portions of the Work, including changes in the Work of other contracts that incorporation of the proposed substitution would require, shall be included.

 

3.3.3  The burden of proof of the merit of the proposed substitution is upon the proposer. The Architect’s decision of approval or disapproval of a proposed substitution shall be final.

3.3.4  If the Architect approves a proposed substitution prior to receipt of Bids, such approval shall be set forth in an Addendum. Approvals made in any other manner shall not be binding, and Bidders shall not rely upon them. 

3.3.5  No substitutions will be considered after the Contract award unless specifically provided for in the Contract Documents.

 

Considerations with the Use of AIA A701-2018 – Instructions to Bidders

 

AIA Document A201 states that unless otherwise specified the Instructions to Bidders is not part of the Contract Documents, so it is not applicable after award of Contract.

 

AIA A701 only permits substitutions prior to receipt of Bids. Some Owners or Design Professionals may wish to allow for substitutions after Bids are received, or even after award of the Contract. In this case the Design Professional must also include substitution procedures in Division 01 – General Requirements.

 

Allowing for substitutions within a stipulated time period after award of Contract, usually 30 to 90 days, gives the Contractor or Construction Manager an opportunity to look at prices without the crush that occurs during bidding, potentially opening up some valid cost savings.

 

AIA A201-2017

 

AIA A201-2017– General Conditions of the Contract for Construction: This document has very little to say on the subject.

        ARTICLE 3 – CONTRACTOR

        3.4 Labor and Materials

3.4.2   Except in the case of minor changes in the Work approved by the Architect in accordance with Section 3.12.8, the Contractor may make substitutions only with the consent of the Owner, after evaluation by the Architect and in accordance with a Change Order or Construction Change Directive.

 

        ARTICLE 7 – CHANGES IN THE WORK

        7.3 Construction Change Directives

7.3.8 …When both additions and credits covering related Work or substitutions are involved in a change…

 

Reasons for substitutions

 

Why should we even look at substitutions? We have selected products that we want; shouldn’t we just get those? Look at this from several perspectives:

 

The Owner often wants to allow for open and competitive bidding, which typically leads to lower prices.

 

The Contractor or Construction Manager wants to utilize their previous experience with products, both good and bad. They may have a valid reason to look at products other than those specified.

 

We may find out after documents are issued that the specified product is not available, for various reasons; it went out of production, there was a fire at the manufacturer’s facility, or the lead time is too long.

 

What are the concerns that the Owner and Design Professional have about accepting substitutions?

 

The potential for use of inferior or inappropriate products.

 

The time, and therefore cost, to evaluate substitution requests.

 

A potentially longer bidding process to allow for the submittal and evaluation of proposed substitutions.

 

The potential for loss of control over the Project due to the use of unfamiliar products.

 

Project Manuals

 

Product Manuals should include the following coverage of substitutions:

 

Section 01 20 00 – Price and Payment Procedures should cover substitution procedures in general. Being located in Division 01 – General Requirements means that these provisions apply to all other Divisions.

 

Each section where manufacturers are listed should include the following statement, edited to designate how substitutions are to be handled in each section:

                 Substitutions: [Refer to Division 01.] [Not permitted.]

 

 

The Rest of the Story

 

In the first half, we looked at how standard documents offered by the American Institute of Architects (AIA) deal with substitutions, and why we may need to consider substitutions. Now let’s see the rest of the story.

 

Timing of Substitutions

There are three points during the design and construction process that substitutions can be considered:

 

During Bidding:

Written substitution requests are accepted from qualified bidders, then a list of approved Substitutions is issued by Addendum prior to receipt of bids.

 

Bidders may include either specified products or approved substitutions in their bid.

 

The Owner and Design Professional may also accept proposed substitutions and any cost adjustments along with bids. These provisions must be stated in the Bidding Documents.

 

Prior to Construction:

 

Bids are received based on the specified products.

 

Substitutions are considered prior to the execution of the Contract along with any cost adjustments.

 

During Construction:

 

Substitutions are considered within a defined time period after award of Contract only.

 

After this time period, substitutions are considered only due to the non-availability of specified products.

 

How are Substitution Procedures Incorporated into the Project Manual?

 

If AIA A701 – Instructions to Bidders is utilized, substitution procedures are contained in that document.

 

When AIA A701 is not utilized, the Design Professional must incorporate substitution procedures into the Project Manual. Potential locations include:

 

Document 00 21 13 – Instructions to Bidders.

Section 01 20 00 – Price and Payment Procedures.

Section 01 60 00 – Product Requirements.

 

Product-Related Sections:

 

Individual specification sections in Divisions 02 through 50 may include statements as to whether substitutions will be allowed for each product.

 

Typical statements may include:

 

Substitutions: Refer to Division 01.

 

Substitutions: Not permitted.

 

How Products are Specified:

 

Reference Standard Specification:

 

Defines product attributes by the inclusion of a third party standard by reference:

 

“Paint : Meet ASTM C 1111.”

 

Any product meeting the specified requirements may be used.

 

Documentation of compliance is required.

 

Substitution requests are not necessary.

 

Descriptive Specification:

 

Defines product attributes by describing the required appearance, performance requirements, etc.

 

“Paint : Green, shiny, and washable”.

 

Documentation of conformance is required.

 

Substitution requests are not necessary.

 

Performance Specification:

 

Defines product attributes by describing the required end results. A method for measurement of conformance is required:

 

“Coat walls with a fluid-applied product providing green appearance and minimum 70% light reflectance when tested to ASTM A111. Allow for normal washing with detergent and water applied by cloth.”

 

Documentation of conformance is required.

 

Substitution requests are not necessary.

 

Proprietary Specification:

 

Defines product attributes by naming a manufacturer and product name, with or without a substitution clause:

 

“Paint: Wonder Wall Paint by Acme Paints.”

 

Substitutions may be considered as stated in the Project Manual.

 

Open versus Closed Specifications:

 

Publicly funded projects: Closed specifications are typically not permitted by law, except in instances where exact matching of existing products is required.

 

Privately funded projects: Closed specifications are permitted but are typically not desirable due to the potential for inflated prices.

 

Product Substitution Terminology:

 

“Or Equal”:

 

Worst option; implies that the Contractor’s or supplier’s definition of “equal” is acceptable.

 

Does not allow for the use of products that are perfectly acceptable but not “equal”.

 

“Or Approved Equal”:

 

Better option; implies that review and approval by the Architect/Engineer is required.

 

Still does not allow for acceptable but non ”equal” products.

 

“Or Approved Substitute”:

 

Best option; avoids the argument of who decides what is “equal”.

 

Implies that review and approval by the Architect/Engineer is required.

 

Allows for the use of non “equal” but acceptable products.

 

Consideration of Substitutions:

 

What the Design Professional Should Evaluate:

 

Was the substitution request received within the allotted time?

 

Does the substitution request meet the specified requirements, including the use of a standard form if required?

 

Was adequate backup provided, including test data, certifications, cost data, and samples?

 

Was the substitution implied on a shop drawing or product data submittal without a formal request?

 

Is the product truly equivalent?

 

Product Equivalency Considerations:

 

Function: Does the submitted product function the same as the specified product?

 

Appearance: Is the appearance the same as the specified product?

 

Quality: Is the quality equal or superior to the specified product?

 

Dimensions: Do the submitted product’s dimensions vary from the specified product, requiring revisions to the drawings?

 

Longevity: Is the life expectancy of the proposed product equal or exceed that of the specified product?

 

Code compliance: Is the proposed product approved by the applicable code authorities?

 

History: Does the proposed product have local installations that can be viewed by the Design Professional?

 

Manufacturer: What is the history and stability of the manufacturer of the proposed product?

 

Warranty: Does the proposed product’s warranty include equivalent terms?

 

Making it All Work:

 

Everyone in the construction industry is involved in the product substitution process.

 

Understanding the reasons behind and concerns about product substitutions makes it easier for everyone involved to manage the process.

 

Effective management of the product substitution process is necessary to ensure that project requirements are met.

 

Project specifications must clearly define requirements for product substitutions.

 

Project Manuals should include the following coverage of substitutions:

 

Section 01 20 00 – Price and Payment Procedures should cover substitution procedures in general. Being located in Division 01 – General Requirements means that these provisions apply to all other Divisions.

Each section where manufacturers are listed should include the following statement, edited to designate how substitutions are to be handled in each section:

 

     Substitutions: [Refer to Division 01.] [Not permitted.]

 

 

Related ZeroDocs documents:  

01 20 00 – Price and Payment Procedures: Includes general requirements for product substitutions.

01 25 19 – Substitution Request Form: For incorporation into a Project Manual to provide a format for product substitutions. 

 

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