Whether contractors are involved during early project planning or become involved at the time of bidding when project drawings and specifications have been established, there may be risk factors involved with specified sole-source materials. When faced with a sole-source requirement, it is important to proceed with caution and take the necessary steps to avoid risks and potential conflict with quality, performance, safety, and/or warranty requirements. Here are some suggested steps and considerations contractors can take before proceeding.
Take Precautions During the Bidding Process
Taking the time to be diligent during the bidding process can save you from headaches later. Consider submitting a pre-bid RFI to obtain clarity and to confirm the use of the sole-source material. Confirming the use of the sole-source material prior to submitting a bid on the project can help you as the contractor identify potential issues prior to beginning any work on site and can also help the owner and design team become aware of potential issues that may not be considered during the selection process, such as warrantability.
Negotiate Prior to Entering into a Contract
Another area where clarity can be achieved is in the negotiation process. Seek a formal scope review process and clarify the design requirement of the sole-source in your Assumptions and Clarifications (“As & Cs”). Negotiate the incorporation of your notes from the scope review and your As and Cs into your contract prior to signing. This will allow you to work with the other parties to home in on the specifics of the sole-source requirement and even express concerns that may have come to your attention with the use of the specified material in other known applications. It is also the imperative step in communicating the procurement process and potential exposures of purchasing products that may have unreliable lead time commitments.
Submit Requests for Information (RFIs)
Submitting an RFI can save time and effort as well as provide clarity as to the specific use of the sole-source material, even if it is simply a confirming RFI. If there is a problem that is identified due to the use of the sole-source material, a detailed RFI can allow the owner and relevant parties to re-evaluate the product and provide additional information, detail, and direction. Submitting RFIs are important and are a great way to show compliance with the contract and that you are moving in accordance with the owner’s vision for the project. After getting clarification and/or confirmation for the use of the sole-source material through the RFI process, reference or include the RFI and its response with the product data submittal for an additional layer of clarity. Consider utilizing the returned submittal to create a formal execution procedure as the last step to mitigate risk; outline to the Owner and design team how your team plans to install the material to align with the specifications and request any feedback that they may have. When the project is completed, be sure to include the project RFIs and submittals in addition to the other necessary documents such as operations and maintenance data (“O & Ms”) and warranties to close out the project.
Follow the Contract
Following the contract may sound simple but it is essential. You may have concerns with the use of sole-source material for various reasons but remember, at this point, you have signed a contract and are obligated to complete your work on time, as agreed upon and specified in the contract documents. If you comply with the contract, even if you disagree with it, it will reduce risks and potential conflict.
In sum, using sole-source materials can seem difficult to navigate because of the limitations and risks that may come with their use for quality, performance, safety, and warranty. However, if there is one thing to take away from this, it is that communication is key at every level of the project from the pre-bid process to the closeout stage. Communicating at the pre-bid and negotiating stage can prevent problems down the road. Even if you may have overlooked a portion of the sole-source requirement at the beginning of the project, clarity can always be obtained during the construction phase by using the RFI process as a tool. It is important to follow the terms of your agreement, but it is also important that you mitigate and reduce your risks. Do not let a sole-source material requirement stop you from bidding or completing a project successfully.
