Questions come up from time to time about Restrictive Proprietary Performance Specs - and what they are.
Even more questions come up about how such specs facilitate the scams.
Restrictive Proprietary Performance Specs are exactly what they say - specifications that may or may not say the name of the manufacturer being specified, to the exclusion of others, in the performance qualities specified. They restrict the products being allowed to bid upon to one.
So for those who have questions and need clarification, here's the explanation in the Letter to the Editor from myself regarding how Restrictive Proprietary Performance Specs allow one manufacturer "in" as the only product to be bid upon. It was printed in the Midwest Roofer Magazine, Spring of 2003 by the Midwest Roofing Contractor's Association (MRCA), and is reprinted below.
I heard the President of Tremco flew in to the MRCA headquarters in the midwest to complain.....but owners of huge roofing concerns were "so glad to know me!"
Feel free to use the Letter with confused facilities managers and complicit architects & specifiers, liberally!
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Letter to the Editor
Response to Letter to the Editor from President of Tremco, printed in the Midwest Roofer, Summer, 2001
Midwest Roofer, March, 2003
Exclusionary Specifications Update
It is long past time that what some roofing industry insiders call “a billion-dollar taxpayer scam” be exposed.
I recognize that your publication, the Midwest Roofer, broke ground on the subject of “Exclusionary Specifications” back in 1997 with what resulted in a series of articles written by members and manufacturers that stated opinions on both sides of the issue. Thank you for dealing candidly with the issue, as other industry publications have not included several articles critical of the practices involved. I would like to update the industry regarding recent events on this subject.
As an architect, I was laid off at the University of California, San Francisco (UCSF) in response to my reporting to the FBI about long-term violations of the California Public Contract Code in restrictive proprietary roofing specifications.
The roofing specifications were provided by a local Tremco Field Representative to in-house UCSF architects, project managers, building managers and consulting architects, who incorporated them into their contract documents for bidding at the University of California, San Francisco over the past 20 years.
In the summer of 1997, the FBI found those same restrictive proprietary roofing specifications to clearly violate the California Public Contract Code. According to the FBI Agent involved in his deposition in my on-going case, when they brought it to the Federal District Attorney’s Offices here in San Francisco, they turned down prosecution and wouldn’t tell him why. This same FBI Agent again stated, under oath, that the specifications were in clear violation of the California Public Contract Code.
For one set of specifications alone, UCSF records show a payment of $25,000 made to the Tremco Field Representative for “Roof Consulting.” Further, the Tremco representative was paid for inspections of their roofs, also according to UCSF records.
These practices pose a question: Are Tremco representatives certified by the Roofing Consultant’s Institute (RCI) as Roof Consultants? If so, are they at the same time acting as a Tremco manufacturer's rep? It is our understanding that Tremco attempted to have a number of their representatives receive certification by flying them in for a seminar put on by the RCI. When the RCI was asked to give them designation as roof consultants for the seminar, the RCI declined. It was against RCI’s By-Laws - Article 16, Section 1: "Conflict of Interest," to have a manufacturer’s representative be certified as an independent roofing consultant.
Documents pertinent to this point and many more that raise other concerns have been produced during depositions. One of those documents includes a Tremco in-house training document that headlines, on page six of the document, “CONTROLLING THE SCHOOL AND PUBLIC WORK”.
This methodology was described in-depth in a Midwest Roofer article written by L.B. Morris titled “Tremco: Strategies and Methods” in 1997.
Here is a brief summary of instructions provided in those documents, and how they were applied at UCSF:
Control the setting of budgets one year or more prior to the bidding process.
At UCSF, Tremco representatives produced a TRIM report, according to one of their former Inspectors, recommending new roofs where the Inspector said that new roofs were not needed.
Convince the maintenance and School District personnel that they should purchase a maintenance agreement from the manufacturer, without addressing warranty issues.
Aren’t roofing contractors alone the best parties to provide the maintenance service, not through manufacturers? And how can other major manufacturers give 20 or 30 year roofing warranties, without requiring an expensive maintenance agreement?
Have pre-bid mandatory meetings at which those who wish to bid must attend in person.
At UCSF, several repeat roofing contractors showed up along with the Tremco representative. In other cases in the south San Francisco Bay Area, dates for the meetings were not advertised until after the date of the meeting, or until it was too late to participate in the process as required by law.
The representative controls the specifications, delivers the bid submission documents package to each of their "approved" contractors, and who gets what pricing. This according to former personnel at the largest roofing contractor in the US, now out of business - also formerly an approved Tremco applicator.
All of which occurred when I was working at UCSF.
I am sure almost every roofing contractor, roofing products supplier, roofing manufacturer, roofing consultant, and errors and omissions insurance carrier is aware of these practices. However, most importantly, the customers - architects, purchasing agents and school district board members - are not aware of these carefully planned and executed "CONTROLLING THE SCHOOL AND PUBLIC WORK" practices.
Industry professionals who have compared estimates when these practices occurred on UCSF and other jobs over the past 13 years demonstrate a large disparity in pricing. Further, the restrictive tests required in the UCSF-Tremco restrictive proprietary roofing specs were either:
Out of date, according to the testing agencies, when newer
specifications should have been cited and met;
Nonexistent, in some cases, according to the testing agencies; or
Numbers were picked out of range when the
range was the applicable and only data that should have
been used, according to the testing agencies.
Through legal research, we know of at least two cases when Tremco restrictive proprietary roofing specifications were brought up in criminal proceedings.
Had it gone to trial, one case may well have proved that the product being produced here in California was not consistent with test data and in conflict with the certifications being produced at that time in UCSF specifications. That case resulted in an out-of-court settlement of a slander suit against Tremco for their accusations against a contractor. Apparently, a Tremco-approved applicator decided to bid another and equal product as allowed by law. Tremco then accused this roofing contractor of diluting their product and applying it to buildings belonging to the government. In order to win that suit, the applicator had to be prepared to go to court to prove that they had not done so. One of the ways to prove they had not done so was to prove that as an applicator, they simply had no knowledge or way of diluting the product. In order to mix anything into the product, a high-speed mixer is required. The only known way of successfully diluting the product would have been at the manufacturer’s plant, as such equipment was not nor is known to have been owned by any applicator.
The other case involved a School Administrator who was accused of allowing a substitution for a Tremco product by using a test that was not equal to the one that Tremco had supplied in the specification. The School Administrator was able to produce an in-house Tremco document that described how the two tests were equal.
We have also seen numerous cases of former Tremco representatives being sued for non-compete and other issues arising from continued employment in the roofing industry.
Serious questions arise from such practices and cases:
How can we rely on a manufacturer who engages in these
activities to certify that they have no problems with their
own materials?
How can we rely on a manufacturer to be a roofing consultant?
How can we rely on a manufacturer to inspect its own roofs?
How can we rely on a manufacturer that does not go out on
the open market with its pricing?
How can we have a fair bidding process for a good product
at a reasonable price on public buildings, when one manufacturer
infiltrates and manipulates the process to exclude competition
for public bids?
The final question is one of professional ethics, private conscience and public interest. How can we as taxpayers sit idly by when the same manufacturer, who fixed the process so only its high-priced product can meet the specification, also arranges for the application of a product that is not even in compliance with its own specification?
These conflicts of interest result in a deliberate undermining of the educational system, the taxpayer dollar, and public health.
Architects are licensed to protect the health, safety and welfare of the general public. It was my professional duty to advise the proper authorities when I observed these practices. UCSF officials kept turning a blind eye when others and I protested similar practices, over a long period of time.
Not one person at the University of California, San Francisco (UCSF) has been known to stop these practices. If you have read Steve Bennish's article in the Dayton Daily News, reprinted in 2002 in the Midwest Roofer, he reported what one of UC's employees, Chris Patti, told him. He said that they "let Tremco write specifications for them."
It is true. Ongoing UCSF projects, some of them quite large in San Francisco and in other cities, include restrictive proprietary roofing specifications written by UCSF's favorite roofing manufacturer - and inserted by the design firms into project specifications documents.
When I looked into local professional organizations for help, I found that their "roofing and waterproofing experts" were not only defensive of these practices; some of them also attempted to involve others, including protesting, unwilling governmental clients, into using restrictive proprietary specs in roofing.
Proprietary specifications may be acceptable in some situations, but ones that are written to exclude legitimate competition on public bids are not. As states across the country struggle with massive budget deficits, and are making large cuts in educational services, it is our common duty as taxpayers to expose and end waste of taxpayer dollars.
If you are involved in similar practices, it would be advisable to permanently distance yourself from them as quickly as possible. In order to stop this massive and very costly scam, it is going to take concerted action on the part of everyone affected or previously involved.
We all need to speak out, and where it counts.
Janet C. Campbell, is an Architect in San Francisco, California, and an Associate Member of the MRCA. Any and all opinions expressed in the Midwest Roofer are those of the author(s), and not necessarily those of MRCA by fact of publication.
