Proprietary Systems

Your design includes a proprietary system.  For example a glazed wall or curtain wall system, cladding or a façade cladding system, roof or sandwich panel, a membrane waterproofing system, flashing system – take your pick.  You are reliant on the provider’s information for design documentation (including details specifications and QA systems), on a licensed applicator/installer for the work on site, and on a producer certificate and/or warranty for completion.

When it goes wrong, are you in the cross-hairs?

Apart from being a natural target as the designer holding PI cover, it will depend!

In selecting the product or system for your design, you are entitled to rely on representations by the supplier, but as a professional person it is expected that you at least attempt to divide the facts from the “alternative facts”.  When the blow-torch is applied in the courtroom (several years later), you need to be able to verify that you carried out sufficient enquiry to establish that you made a prudent selection.  And that your selection was made on the basis of the particular circumstances of the project as they were known at the time.

When incorporating the supplier’s information into your design, you still have a duty to assess and make sensible use of their standard detailing to suit the project.  Wind loadings, seismic movement, future maintenance, installation complexity and many other issues will be relevant.  The question is not so much “will it be good enough” but “where, why and how will it potentially fail, and what are the consequences of that?”

The supplier’s information is not usually provided in the form necessary to deal with all the junctions and interfaces with other work;  QA/ fixing details/ lap details/ weathering details may be at odds with your expectations.  Your site-specific design needs to deal with that.  If you “tweak” a standard detail, it becomes your detail, not theirs.  The same if you use a standard detail in a non-standard way.

During the installation, what are your obligations to observe?  You may think that your responsibility is replaced or reduced by using a licensed installer under the supplier’s QA system.  But sooner or later, someone is going to suggest that despite that, you still had a duty to observe and comment on the work.  A licensed installer does not provide certainty of performance;  a supplier’s QA system in turn needs to be assessed and monitored.  At the very least you will have to verify that you reviewed the work to the extent required to be satisfied that the performance requirements and the QA measures were being carried out.

On completion, are you now completely reliant upon documentation by the supplier?  If so, what is in place to make sure you get it when you need it?  Can it be trusted:  it is not unknown for suppliers to sign off on defective work in the hope that it never comes back to bite them.  If the contract requires a warranty, make sure you get it.  But a warranty from a worthless company is worthless!  How hard is it going to be to “collect” on the warranty when required?

And now we are at the point – years later – when the proprietary system and/or building elements in association with it have failed.  Maybe the main contractor, supplier and installer have also “evaporated”.  Worse, close examination reveals that the system was used in a non-standard way, and with substitution of some elements of it, despite the producer statements and warranties.  The performance expectations and technical detailing has become more sophisticated over the years. 

Only now, dear member, do you realise that the fees you earned were inadequate to allow for the careful attention required by the circumstances of this project;  or for the potential future risk that under joint and several liability you (and your insurers) would carry the can for failures by others.

(See also “Reliance on, and co-ordination of trade and consultant advice”)