Closer look: Working with warranties
As architects use more and more glass in their design, glass and glazing professionals have begun to see longer, more complex warranty language in contract documents related to fenestration systems. In many cases, warranty periods are being extended beyond historical norms.
The reason is at least two-fold, says Oliver Stepe, senior vice president, YKK AP, Austell, Ga. “First of all, architects and building owners have likely experienced actual and perceived performance failures with fenestration in the field,” he says. In addition, architects and building owners may have had problems with appropriate response to warranty claims. “A natural reaction under these circumstances might be to focus on establishing more stringent warranty provisions [but] the warranty is only as good as the company that wrote it,” he says.
Secondly, marketing efforts of building product manufacturers have often evolved and lengthened warranties, Stepe says. “One great example of this is the evolution of the 20-year finish warranty on 70 percent PVDF painted finishes. In the early years of this evolution, one brand of paint manufacturers launched the warranty as a marketing strategy to gain market share, and others followed suit for competitive reasons.”
Ed Trainor, Trainor Glass Co., Alsip, Ill., agrees with the competition factor. “I don’t think there is as much fight back [against more complex warranties] from suppliers and glazing contractors due to the competitive environment we are currently in,” he says. “In normal times, custom and extended warranties are part of contract negotiations, and they come with a price if they come at all. Extended warranties can turn out to cost very little to the glazing contractor or there can be huge costs associated even if they did everything right themselves.”
For example, Trainor Glass is seeing architects asking for warranties that include glass breakage. “Glass breakage may never occur, and thus cost nothing to the glazing contractor,” Trainor says. “On the other hand, there is also potential for huge costs associated with glass breakage.”
Many of the provisions in today’s specifications originated with manufacturing companies, says Garret Henson, director of sales, Viracon, Owatonna, Minn. “Manufacturers began offering enhanced provisions as a means of differentiating themselves from their competitors,” he says. “Today, consultants and architects that write specifications often take the best offerings from each unique supplier and add them into the specification.”
However, glazing contractors are responsible for validating that they and their supplier can meet the written requirements, Henson says. “If they cannot, they should partner with a manufacturer that can provide data to help correct misguided specifications. Reviewing specifications is like reviewing a contract; it needs to be done carefully. One oversight, and involved parties quickly find themselves in reactive mode. It’s much better to take a proactive approach.”
Stepe agrees. “Even though manufacturers provide product warranties, the glazing contractor is ultimately responsible for 100 percent of the contract document provisions, including warranties,” he says. “Most astute contractors realize this, but there is likely a great opportunity for education in this area for glazing contractors. The product manufacturers warranty is in effect a supporting cast member to the contractor’s warranty. It provides added assurance and is enforceable; however it cannot be a substitute for an all-inclusive contractor’s warranty. Reputable manufacturers will stand behind their warranties without question if the problem is due to a product defect. However, the glazing contractor is primarily responsible for the warranty within the contract documents.”
Longer, more demanding contract documents could turn out to be a problem for the glazing community. “The glazing contractor is responsible for their contract with their customer, which typically links them to the plans and specifications,” Trainor says. “Even if their proposal says differently, if it is not incorporated into the contract itself, this puts the glazing contractor at risk.”
This problem will get out of hand if architects and building owners push warranty requirements or durations beyond commercial feasibility, Stepe says. “In such a case, one of two things will likely occur: Either the trades or manufacturers will push back to a point where the desired warranty cannot be obtained, or some parties will offer irresponsible warranties that they ultimately may not back,” he says.
There also are gaps between the material supplier warranties and the glazing contractor’s warranty, and the glazing contractor might be responsible for gaps between the manufacturer’s warranties and their own warranty in terms of language and duration, Trainor says. “The glazing contractor may be unknowingly taking on obligations in their contract with their customer that are not backed up by their suppliers, and they often will not know it until the job is complete and they are submitting the warranties. Retainage payments are often held until the correct warranties are submitted,” he says.
Requests for warranties that commence at “substantial completion” are ambiguous to product manufacturers, Henson says. “How does one put a time table to this from project to project? Who measures ‘substantial completion?’ The ambiguity makes this a challenging request for us to comply with, but it is the specification writers’ right to ask for this.”
Gaps between warranties and contract documents occur because most manufacturers only offer standardized boiler plate warranty language, Stepe says. “Further, manufacturers will not always meet the exact warranty language requirements in contract documents because it may attempt to bind manufacturers to assume liability for matters not within their scope of work or control,” he says.
Tips to avoid the problem
Where warranties from a manufacturer and a glazier do not combine to meet the architect's specifications, raise the issue early, often and in writing, says Matthew A. Johnson, The Gary Law Group, Portland, Ore. “If at the bidding phase, perhaps an increased bid amount that notes the gap will allow a glazier to accrue for the potential loss, and also show a responsible level of detail review to the general contractor who is evaluating the bid. Additionally, if pre-bid, it may allow the glazing contractor the opportunity to approach the manufacturer to see if there is an additional price-point option that can cover any gap.”
If the issue arises post-contracting, approaching the manufacturer and general contractor is advisable, Johnson says. “Recognize that a warranty gap is effectively a contract change and must be addressed through the formal procedures required under the agreement -- RFI/CO/ACO [Request for Information/Change Order/Approved Change Order].” Where there is no formal contract procedure, the contractor should raise the issue and get formal commitment of the necessary parties to the change. “Leaving a gap or assuming the parties understand the gap exists could serve as an exposure point for a later liability claim; but more importantly could serve as a GC's justification for not clearing payment, or an architect's basis for refusing approval,” he says.
As a manufacturer, YKK has evolved its warranty programs by educating glazing contractors on quality assurance in the field and the importance of proper installation practice through product labeling and notifications via order acknowledgments, Stepe says. “We also offer clients a one-week educational program on establishing a field quality assurance platform in their own businesses,” he says. “Just last year, we added installation sequence videos to our Web site as well as new ‘quality assurance checklists.’ The one-page checklists are a simple and easy-to-use tool available to glazing contractors and/or quality assurance personnel on job sites for reviewing and inspecting the key installation sequences of our products.”
At Viracon, to avoid the “substantial completion” issue, “we quote a static quote by product makeup to extend the warranty to the desired date for substantial completion,” Henson says. “We can’t pick the date of substantial completion, so we provide a cost for our customer to allow the general contractor and his team to determine the time frame they want. If we get the opportunity to review the specification at the time of bid, we communicate this to our customers, thus giving them the time to prepare their bid accordingly.”
Be upfront and discuss with the customer, Trainor advises. “Use the specified suppliers to help resolve any warranty gaps as it relates to the products they are supplying. Submit sample warranties as part of the submittal package and get them approved early on when there are still options for all parties. Some of these things are much harder to do if the bid is a ‘sealed bid,’ ” he says. Most importantly, “don’t look short term even if you are hard up for work. Don’t ‘throw in’ something that might have significant long-term costs.”