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I am a manufacturers representative working with two Architectural firms on a large government project which was bid as a design/Bid contract to the GC based on government "basis of design" specifications.  Our materials meet all the requirements and have been specified on the job.  The government entity involved, is not sold on the aesthetic being presented by the architects.  In the meantime, a competitor has gone directly to the GC and submitted materials to be considered, none of which meet the basis of design requirements.  My question is:   Can the GC ignore the "Basis of Design" specs their contract is based on, in order to satisfy the end users aesthetically?  My understanding has always been that on government projects, the "basis of design" has to be met first...........


Gerry Sverdlin
Gerry Sverdlin  
Thank you for your question, Lori.

From the statement of your question it appears that the type of the contract your client – the Architect / Engineer (“A/E” or “Design Professional” or “DP”) on a large government project – is involved in the Design-Build (“D-B”) project (the terminology “design/Bid’ is incorrect, unless it is Design-Bid-Build, or "D-B-B").  Under both types of procurement, the contract package usually contains technical specifications and design criteria, which indeed reflect the basis of design.  When the government is the project Owner, the job is typically awarded to the lowest responsive and responsible bidder – the General Contractor (“GC”) who must build the job in accordance with the specifications.  
The A/E usually can’t restrictively specify the product by name/product ID/model# alone, except in stating “or approved equal,” giving the A/E the latitude to determine that the product or material submitted by the GC, through Shop Drawing Submittals, is compliant to the requirements of the specifications in all respects.  

GC does not have the latitude to unilaterally deviate from the Project Spec in any material way, except upon specific written approval of the A/E, lest the product be later found defective and be rejected upon inspection or tests of completion.  In fact, on a typical material submittal form (Shop Drawing Submittal), the GC has to indicate (check mark) that:

a.   GC verified all relevant specifications for this job, and that the submitted material is compliant with such requirements in every respect, or

b.   If there is a known deviation from the requirements of the project, the GC has to indicate on the very same submittal form (Shop Drawing / Transmittal Cover Sheet, or any other agency-specific title) that there is a deviation from the project requirements, and the deviation is expressly brought up to attention of the A/E for its consideration whether or not the submitted Shop Drawing for product of material can be approved “as approved equal” substitute for this project notwithstanding the deviation.

In the process of such determination, the A/E weighs in all the functional and aesthetic properties of the product or material, determines its fitness for the requirements of the job, and stamps the GC’s Shop Drawing with a specific stamp showing that GC now has authority to proceed with procurement – construction - installation.

Sometimes even the diligent Contractor – GC here – fails to notice deviations in his proposed material or product and, consequently, checks the wrong box on the Shop Drawing Submittal form, indicating, as in a) above, he checked the material for compliance and found it fully compliant with the Project Spec. We are all humans subject to make innocent mistakes, after all. In such event, the A/E may miss the deviation and approve a non-compliant product. This is termed to be an “unknowing” approval, i.e. the A/E did not consider deviation or non-compliance of a product, because it was not expressly stated on the Shop drawing Submittal form. (That is how the Hyatt Regency disaster occurred.

If you have noticed that the material submitted by your competitor has failed to satisfy some functional specification of the Project Spec – i.e. wrongful or negligent approval by the A/E of a non-compliant material - you may want to bring the deviation to the attention of the A/E – sometime under formal protest and in writing - and have the A/E re-consider the prior approval, or fitness of that originally-approved material for the job, or intended purposes.  

Sometimes, the A/E decides to waive some functional/structural requirements of the Spec for this material in favor of aesthetic value of the product - and CYA is not the only reason - on the basis of the low-bid or provisional price/allowance built into the project budget.  If the deviation is deemed to be material enough, then the A/E may reject wrongfully-approved prior Shop Drawing submittal of that material /product and may instruct the GC to use other product, may even be yours, if you are persuasive enough.  It is a judgment call within purview of the A/E’s authority.
I hope this answer is responsive to your inquiry.

Gerry Sverdlin, PE, Esq.

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Gerry Sverdlin


Questions I can answer or provide assistance to reflect the following subjects: contract terms and conditions, interpretation of ambiguity, construction management and practices, claims for costs and time, variation / change orders, disputes, dispute resolution techniques and organizations, claims for extra work or materials, delay analysis, disruption or interference, defective design and negligent supervision, construction risks and mitigation, warranties and insurance. Questions I can NOT answer: too numerous to list here.


Mr. Sverdlin provided over 20 years of services in dispute resolution and expert opinion of complex construction claims for extra work, delay & acceleration, defective design & installation, unauthorized deviations, differing site conditions, productivity loss, labor & material shortage, owner’s interferences, force majeure, bonding, warranties and insurance coverage. Mr. Sverdlin participated in dispute resolution proceedings regarding 10 mile sub-aqueous outfall tunnel at Deer Island Treatment Plant – Boston Harbor Project, and claims arising out of construction of the South Boston / South Bay Interchanges for the Central Artery/Tunnel Project in Boston, Massachusetts, USA, and multiple proceedings Middle East. Specialties: Mr. Sverdlin established expertise in construction contract preparation under EJCDC, AIA, FIDIC and agency-specific bespoke contract frameworks: procurement administration, resolving defects in scope of work coverage, specification and estimates, change order processing, project controls & cost recovery. Engineering practice encompasses design & procurement management of highway & rail transportation systems, wastewater treatment and drainage networks, key performance indicator regimen.

2011 - CIArb Member Grade 1999 - Attorney at Law – Massachusetts Bar, BBO # 642980 1992 - Registered Professional Engineer - PE: Lic. MA-36839 - Civil Affiliated Memberships: MBA - Massachusetts Bar Association DRBF - Dispute Review Board Foundation TASA - Technical Advisory Service for Attorneys

2010 - 2011 - American University in Dubai -Grad. Sch. of Business Administration Construction Contracts, Means & Methods, Claims & Changes, Project Controls March 2009 - Chamber of Commerce, Colombo, Sri Lanka – Construction Management Seminar Changes & Claims, EOT/Delay Damages, Loss of Productivity – Measured Mile 2000- 2007– Boston Architectural Ctr & Wentworth Inst. of Technology - Construction Law 1991- 1993 - Northeastern University, Boston, MA – Land Surveying, Sewage Disposal System Numerous continuing education specialty courses Suffolk University Law School - Juris Doctor, law -1993 – 1997 Northeastern University - MS, Construction / Public Works Management - 1993 Polytechnic University - BS, Civil Engineering 1982 – 1985

Past/Present Clients
Representative Projects Dubai International Airport UAE Muscat & Salalah Int'l Airports Oman South River Dredging Mechanical Scituate, MA Permitting / Boundary Dispute (Title V) Worcester, MA Hazardous Material Site Assessment New Bedford, MA Groundwater Pollution Monitoring Burlington - Woburn, MA Hazardous Material Disposal - Site Clean-up Wrentham, MA Sewer Rehabilitation Project – STEP Abu Dhabi, UAE Dubai Metro - Road & Transportation Authority, Dubai, UAE Boston Harbor Project - Deer Island MWRA - BHP Winthrop, MA 1,200 MGD Waste-Water Treatment Plant Doha North Sewerage Treatment Works Ashghal, Doha, Qatar 254K m3/d STP, 25-km triple force mains, 33-km Interceptor Sewers 10,000 l/s PS Central Artery / Tunnel Project - MHD / MTA Boston, MA 116 lane-miles Old Colony Railroad - Commuter Rail (Boston, MA 70+ mi) Cherry St. Reconstruction Full-Depth Bridgewater, MA 2.1 mi Scenic Roads Reconstruction Town-wide Wayland, MA 8.7 mi Strawberry Hill Rd Reconstruction Full-Depth Concord, MA 1.7 mi Craigsville Beach Rd Reconstruction Full-Depth Hyannis, MA 3.4 mi Water Main Replacement Southborough, MA EMAAR – Gulf III Towers, Dubai, UAE Mixed-Use Hi-Rise Peabody Properties Residential Hi-Rise Lynn, MA Bristol Properties Shopping Mall Attleboro, MA May Institute (children w/special needs) Institutional Randolph, MA Bear Hill Executive Park Commercial Waltham, MA Prospect Hill Executive Park Commercial Waltham, MA Residential Community Subdivision 128 lots Hopkinton,MA Retirement Community Subdivision Residential – 126-lots Warren,MA Independence Mall Retail Kingston, MA Mashnee Village Subdivision Residential – 54-lots Buzzards Bay, MA Hyannis Industrial Park Heavy Commercial

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