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Choice of Materials and Materials Substitutions

The materials used in a construction project can either be dictated by the owner, left to the contractor's judgment, or a combination of the two. An owner who is critically concerned with the quality of the materials used may identify, with the help of the architect or other design professional, specific materials and products that are to be used in the construction. The specificity extends to outlining the brand and model number of the products, color, size, and any other identifying feature that would set the acceptable product apart from others. Under these circumstances, a contractor's deviation, even if well intentioned, may open him up to a charge of breach of contract.

On the other extreme, the parties may agree that the contractor can and should determine the materials that will be used in the construction, which meet the project's requirements. This is generally not preferred by the owner who loses all control over the quality of the materials utilized. The usual, and seemingly most desirable method for determining the materials used, from the standpoint of both parties, is to compromise between the two extremes. Basically, the owner and his design professional will identify a variety of products that are acceptable for the project. Thereafter, the contractor can freely choose between these “acceptable” products based on his judgment, experience, and understanding of the project.

In order to allow for compromise, parties may include a provision in the contract documents for materials substitutions. The normal substitution standard is for materials that are equal or better to the materials already identified as “acceptable.” Contracts allowing for such substitutions enable a contractor, if necessary, to use his best judgment to complete the project without having to halt construction so that permission for the use of a different product can be obtained. This makes more efficient use of the parties' resources, allowing the owner to be comfortable in the quality of the product to be produced and allowing the contractor a measure of freedom to do his job as he sees fit within the confines of the project's plans and specifications.

Copyright 2014 LexisNexis, a division of Reed Elsevier Inc.