The College of Marin in Kentfield, Marin County, California, put out a roofing bid spec to one manufacturer late in 2010.
This time, it was sole-sourced to Tremco.
Yes, I just heard the collective "groan" from contractors and reps fighting the scam, or having to go along to have a business. That spec is copied in below, with markups for those that get that there is something wrong - but can't quite put their finger on it. And can't fight it.
Feel free to use the analysis below with the next bid on a "Lock-Spec", call your lawyer, and start the letters to your School Board, local newspapers, etc. And feel free to call me if you need help - please. I will be glad to dissect the specification for your attorney. Or give this post to your attorney. It will help them.
A Summary is next, and useful to those fighting the scam in their area.
To Marin Community College District Business Administrators not involved in the scam: You most likely have been HAD. And so has bankrupt California - you've just made it worse for California taxpayers and college students.
________________________________________
For those interested in knowing how to spot a "Lock-Spec", how to dissect scam specs, and force competition or the exposure of denial of such when required - here's a thorough dissection of the latest type we see coming in - and in the Marin Community College District's College of Marin Performing Arts Modernization Spec, below.
What's wrong?
You first have to understand what makes a competitive spec and what best practices really are - so here are most important principles in writing competitive specs:
1. If an owner hands you a spec and orders you to insert it, don't. There is a high probability they are on the take. Call your E & O carrier's lawyer, then the State Auditor - less political.....find out what they got, and then call the FBI. If it's over $5,000 and in the past five years, their ears should perk up....handsomely. Usually - at least in California - School Board Members, Facilities Directors, Managers, Design Personnel and Architects/Engineers are known for getting $10,000 apiece for such "Lock-Specs". In cash, coupons, trips, parts and additions to homes, leased cars...... If you are the one on the take, you don't belong here, on this blog.
2. If it's confusing, it isn't a competitive bid spec.
3. Never require manufacturer's "certifications." They are not ascertainable.
4. Tight requirements are not competitive - and have nothing to do with a real roofs, such as:
a. ISO Certifications relating to business operations.
b. Who actually manufactures the products used.
c. Who can bid, based upon where they have done projects
(so many miles within the project bid), how many projects
with their products, etc.
d. The number of contractors certified to install their products
vary widely by manufacturer. If they have more certified,
the better for the owner.
e. The fact that they own and not lease manufacturing facilities.
etc. Some of the larger manufacturers who do not engage in
such practices have discovered scammers buying their
products through "shell" companies, relabeling product, and
offering "warranties" on product far longer than the true
manufacturer does. Tight restrictions having to do with
business operations mean nothing.
5. If there is a long list of tests to be met, beware. Start checking every test, call the Testing Agency in question if you don't understand the tests. Repeatedly seen are:
a. ASTM D5147 called out to test specific attributes.
That standard is a general standard for all the real
attribute tests following it in the ASTM Standards
for Roofing Tests. It's a fraudulent listing. ASTM D5147
tells the testing company how much material to take to
do the tests, not how to conduct the test for the specific
attribute. If you see ASTM D5147 listed by an specific
attribute test to be done, such as "elongation" of the
material, and in specs we have seen, differing attributes
all listing ASTM D5147, you know immediately it's a
"Lock-Spec"
designed to make it impossible for anyone to compete
with it.
b. Old tests are listed that no longer apply.
c. Out-of-date tests are listed, that do apply in the newer
version.
d. The test value to be met is a number picked out of a
range, while only the range applies. According to one
major testing agency, a number picked out of the range
set in their standard means nothing.
e. Listing for Tensile Strength and none for Compressive
Strength. In 2000, the ASTM Roofing Committee
recognized that manufacturer claims that Tensile Strength
was the most important factor in the strength of the roof
was false. If the glass in the system was destroyed, the
strength of the system would be gone. They recognized
and put in place Compressive tests to be met as well as
Tensile Strength tests for each system, due to the fact that
the system needed both Tensile Strength and Compressive
Strength in order to withstand all kinds of stresses.
6. The testing company that certified the test data for the manufacturer's materials may have "fudged" the test or data. We are aware that one major testing agency performed a test wrong, and gave one-hour certifications to a particular type of roofing system...when they did not meet the test as laid out by the major testing agency. They changed the test - because millions of squares of roofing would no longer meet the one-hour Building Code requirements across the US.
A manufacturer has had a former executive open their own testing agency, and certify that manufacturer's products meet tests. It's much better to use well-known roof consultants/testing agencies. Talk to your local Registered Roof Consultants and Registered Roof Observers.....you can find them at: www.rci-online.org Normally, they should not have any links to any one manufacturer - but check them out, first. at: http://members.rci-online.org/wcm/RCIWeb/Directory/RCIWeb/Member_Listing.aspx?hkey=8c84a154-d359-4549-9a2e-a1b57c9a220d
7. Never agree to renewable maintenance agreements in the specifications. Renewable Maintenance Agreements lets the manufacturer and contractor off the hook for a warranty - a real one - and has allowed for the "shorting of the asphalts" between the plies...providing kickback funding out of contracts, according to former personnel of the involved companies....while creating leaks into structures, shortening the lives of roof structures - over children's heads....got the picture?
If a facility wishes to have maintenance agreements apart from the warranty, they should contract direct with the roofing contractor, not the Manufacturer's Rep. Reps are there to sell product, not maintain, roofs.
8. Never accept anything less than a "No Dollar Limit" Warranty on roofs. 9. Installation "means and methods" should never be called out in specifications. They are solely the responsibility of the contractor. If called out, they become the responsibility of the specifying party (architect, engineer) and ultimately, the Owner.
10. Details should not be called out in the specification. Rather, they should be drawn, done specifically to the project, and they should cover all conditions.
11. Owner carrying insurance on the roofs is not the purvue of the manufacturer nor should that information be contained in the bid spec. It is not only extraneous, but to avoid a conflict of interest and the owner being taken, the manufacturer's rep should not be involved in the choices or administrative policies of any agency.
12. Any requirements for the manufacturer to have staff overseeing or inspecting the installation is not in the Owner's best interest. How the manufacturer achieves their No Dollar Limit Warranty is up to them. In the Owner's best interest, include provision for tthe roofing contractor to accommodate the Owner's own consulting Registered Roof Observer and Testing Agency personnel.
13. And last but not least: all specification "Products" sections should list three manufacturer's products and the term "or equal". Not "or approved equal", and not listing small manufacturers like Geoflex who can't compete with the scammer, or one of the other scammers, who appears to "back off" and allow the territory staked out to be to the one manufacturer that is the "basis of design".
In California, the Public Contract Codes are different. Public Contract Code 3400 states that the specifier may "if aware of an equal product manufactured in this state, name that product in the specification" and does not require it. It also does require the term "or equal" to be used, which is not, in the specification below. (See also the pertinent section reprinted below the specification.)
The specification below is clearly written to "lock out" competition, and is illegal.
In Summary: The basic, good, competitive bid spec should be written by the Owner's rep to the advantage of the Owner, not the manufacturer. There are more issues, but these cover the highlights.
You will see many of the issues listed above in the late 2010 specifications "Lock-Spec'd" to Tremco, below, for the College of Marin's Performing Arts Modernization.
Pertinent portion of California Public Contract Code 3400 referred to in Item No. 12, above: "...(b) No agency of the state, nor any political subdivision, municipal corporation, or district, nor any public officer or person charged with the letting of contracts for the construction, alteration, or repair of public works, shall draft or cause to be drafted specifications for bids, in connection with the construction, alteration, or repair of public works, (1) in a manner that limits the bidding, directly or indirectly, to any one specific concern, or (2) calling for a designated material, product, thing, or service by specific brand or trade name unless the specification is followed by the words "or equal" so that bidders may furnish any equal material, product, thing, or service. In applying this section, the specifying agency shall, if aware of an equal product manufactured in this state, name that product in the specification. Specifications shall provide a period of time prior to or after, or prior to and after, the award of the contract for submission of data substantiating a request for a substitution of "an equal" item. If no time period is specified, data may be submitted any time within 35 days after the award of the contract. "
Yes, I just heard the collective "groan" from contractors and reps fighting the scam, or having to go along to have a business. That spec is copied in below, with markups for those that get that there is something wrong - but can't quite put their finger on it. And can't fight it.
Feel free to use the analysis below with the next bid on a "Lock-Spec", call your lawyer, and start the letters to your School Board, local newspapers, etc. And feel free to call me if you need help - please. I will be glad to dissect the specification for your attorney. Or give this post to your attorney. It will help them.
A Summary is next, and useful to those fighting the scam in their area.
To Marin Community College District Business Administrators not involved in the scam: You most likely have been HAD. And so has bankrupt California - you've just made it worse for California taxpayers and college students.
________________________________________
For those interested in knowing how to spot a "Lock-Spec", how to dissect scam specs, and force competition or the exposure of denial of such when required - here's a thorough dissection of the latest type we see coming in - and in the Marin Community College District's College of Marin Performing Arts Modernization Spec, below.
What's wrong?
You first have to understand what makes a competitive spec and what best practices really are - so here are most important principles in writing competitive specs:
1. If an owner hands you a spec and orders you to insert it, don't. There is a high probability they are on the take. Call your E & O carrier's lawyer, then the State Auditor - less political.....find out what they got, and then call the FBI. If it's over $5,000 and in the past five years, their ears should perk up....handsomely. Usually - at least in California - School Board Members, Facilities Directors, Managers, Design Personnel and Architects/Engineers are known for getting $10,000 apiece for such "Lock-Specs". In cash, coupons, trips, parts and additions to homes, leased cars...... If you are the one on the take, you don't belong here, on this blog.
2. If it's confusing, it isn't a competitive bid spec.
3. Never require manufacturer's "certifications." They are not ascertainable.
4. Tight requirements are not competitive - and have nothing to do with a real roofs, such as:
a. ISO Certifications relating to business operations.
b. Who actually manufactures the products used.
c. Who can bid, based upon where they have done projects
(so many miles within the project bid), how many projects
with their products, etc.
d. The number of contractors certified to install their products
vary widely by manufacturer. If they have more certified,
the better for the owner.
e. The fact that they own and not lease manufacturing facilities.
etc. Some of the larger manufacturers who do not engage in
such practices have discovered scammers buying their
products through "shell" companies, relabeling product, and
offering "warranties" on product far longer than the true
manufacturer does. Tight restrictions having to do with
business operations mean nothing.
5. If there is a long list of tests to be met, beware. Start checking every test, call the Testing Agency in question if you don't understand the tests. Repeatedly seen are:
a. ASTM D5147 called out to test specific attributes.
That standard is a general standard for all the real
attribute tests following it in the ASTM Standards
for Roofing Tests. It's a fraudulent listing. ASTM D5147
tells the testing company how much material to take to
do the tests, not how to conduct the test for the specific
attribute. If you see ASTM D5147 listed by an specific
attribute test to be done, such as "elongation" of the
material, and in specs we have seen, differing attributes
all listing ASTM D5147, you know immediately it's a
"Lock-Spec"
designed to make it impossible for anyone to compete
with it.
b. Old tests are listed that no longer apply.
c. Out-of-date tests are listed, that do apply in the newer
version.
d. The test value to be met is a number picked out of a
range, while only the range applies. According to one
major testing agency, a number picked out of the range
set in their standard means nothing.
e. Listing for Tensile Strength and none for Compressive
Strength. In 2000, the ASTM Roofing Committee
recognized that manufacturer claims that Tensile Strength
was the most important factor in the strength of the roof
was false. If the glass in the system was destroyed, the
strength of the system would be gone. They recognized
and put in place Compressive tests to be met as well as
Tensile Strength tests for each system, due to the fact that
the system needed both Tensile Strength and Compressive
Strength in order to withstand all kinds of stresses.
6. The testing company that certified the test data for the manufacturer's materials may have "fudged" the test or data. We are aware that one major testing agency performed a test wrong, and gave one-hour certifications to a particular type of roofing system...when they did not meet the test as laid out by the major testing agency. They changed the test - because millions of squares of roofing would no longer meet the one-hour Building Code requirements across the US.
A manufacturer has had a former executive open their own testing agency, and certify that manufacturer's products meet tests. It's much better to use well-known roof consultants/testing agencies. Talk to your local Registered Roof Consultants and Registered Roof Observers.....you can find them at: www.rci-online.org Normally, they should not have any links to any one manufacturer - but check them out, first. at: http://members.rci-online.org/wcm/RCIWeb/Directory/RCIWeb/Member_Listing.aspx?hkey=8c84a154-d359-4549-9a2e-a1b57c9a220d
7. Never agree to renewable maintenance agreements in the specifications. Renewable Maintenance Agreements lets the manufacturer and contractor off the hook for a warranty - a real one - and has allowed for the "shorting of the asphalts" between the plies...providing kickback funding out of contracts, according to former personnel of the involved companies....while creating leaks into structures, shortening the lives of roof structures - over children's heads....got the picture?
If a facility wishes to have maintenance agreements apart from the warranty, they should contract direct with the roofing contractor, not the Manufacturer's Rep. Reps are there to sell product, not maintain, roofs.
8. Never accept anything less than a "No Dollar Limit" Warranty on roofs. 9. Installation "means and methods" should never be called out in specifications. They are solely the responsibility of the contractor. If called out, they become the responsibility of the specifying party (architect, engineer) and ultimately, the Owner.
10. Details should not be called out in the specification. Rather, they should be drawn, done specifically to the project, and they should cover all conditions.
11. Owner carrying insurance on the roofs is not the purvue of the manufacturer nor should that information be contained in the bid spec. It is not only extraneous, but to avoid a conflict of interest and the owner being taken, the manufacturer's rep should not be involved in the choices or administrative policies of any agency.
12. Any requirements for the manufacturer to have staff overseeing or inspecting the installation is not in the Owner's best interest. How the manufacturer achieves their No Dollar Limit Warranty is up to them. In the Owner's best interest, include provision for tthe roofing contractor to accommodate the Owner's own consulting Registered Roof Observer and Testing Agency personnel.
13. And last but not least: all specification "Products" sections should list three manufacturer's products and the term "or equal". Not "or approved equal", and not listing small manufacturers like Geoflex who can't compete with the scammer, or one of the other scammers, who appears to "back off" and allow the territory staked out to be to the one manufacturer that is the "basis of design".
In California, the Public Contract Codes are different. Public Contract Code 3400 states that the specifier may "if aware of an equal product manufactured in this state, name that product in the specification" and does not require it. It also does require the term "or equal" to be used, which is not, in the specification below. (See also the pertinent section reprinted below the specification.)
The specification below is clearly written to "lock out" competition, and is illegal.
In Summary: The basic, good, competitive bid spec should be written by the Owner's rep to the advantage of the Owner, not the manufacturer. There are more issues, but these cover the highlights.
You will see many of the issues listed above in the late 2010 specifications "Lock-Spec'd" to Tremco, below, for the College of Marin's Performing Arts Modernization.
Pertinent portion of California Public Contract Code 3400 referred to in Item No. 12, above: "...(b) No agency of the state, nor any political subdivision, municipal corporation, or district, nor any public officer or person charged with the letting of contracts for the construction, alteration, or repair of public works, shall draft or cause to be drafted specifications for bids, in connection with the construction, alteration, or repair of public works, (1) in a manner that limits the bidding, directly or indirectly, to any one specific concern, or (2) calling for a designated material, product, thing, or service by specific brand or trade name unless the specification is followed by the words "or equal" so that bidders may furnish any equal material, product, thing, or service. In applying this section, the specifying agency shall, if aware of an equal product manufactured in this state, name that product in the specification. Specifications shall provide a period of time prior to or after, or prior to and after, the award of the contract for submission of data substantiating a request for a substitution of "an equal" item. If no time period is specified, data may be submitted any time within 35 days after the award of the contract. "
