Windows as an Element of Building Design

Paul R. Gary
June 18, 2015
COLUMN : Legal | Strategies & Practices

It is better to understand the business you are in by recognizing the business you are not in. This premise will be helpful as we look at how to avoid claims based upon product selection. Such claims include allegations of unsuitability for site conditions, deviation from project specifications and failure to meet code requirements.

Today’s windows, skylights and sliding glass doors uniformly bear multiple certifications upon their initial sale, including air, water, structural, thermal, sound and so on. As a consequence, when you design, fabricate and then sell those fenestration products, you do so knowing that the market largely demands that the products will have those relevant certifications.

You also know that the certifications indicate performance attributes which vary based upon the requirements of the place and type of specific application. The source of those requirements can be geography, code, an architect/designer specification, local practices, or an idiosyncratic owner. (As to the latter, it remains true that “money talks.”) To ignore the market demands regarding product capabilities is to assure failure.

At the same time, we design and sell knowing the products will function in a building with its own criteria, which may not necessarily be in sync with the certified product performance criteria. Indeed, the selection of fenestration products inherently includes a decision as to whether the application of a particular product’s performance values, expressed as certification requirements, is appropriate. That choice is an essential element of the building design function, not the window manufacturing business.

Of course, to be successful as a “seller,” you will interact with distribution partners and customers. You will work to understand your customers’ needs. Making the customer’s life a little easier is invaluable. But living with this philosophy can make you forget the business you are in or, more importantly, the business you are not in. Even “bright lines” can sometimes become blurred.

Mind Your Business

If you make or sell windows, you are in the business of enabling those down the distribution chain—those responsible for building design—to do their job. That does not make it your job. Consider the following questions. Are you trained to make and sell windows or to design buildings? And, is the license you have to support the manufacture and sale of fenestration products or one for advising a third party on essential elements for their building? With regard to the second question, how do you think your insurance company would respond?

Your sales process documentation can be set up to confirm that the product selection choice belongs to the buyer. Be helpful, be transparent. Provide all the good, supportable information about your products. But do not wander across the line and allow yourself to be cast as the one who made the selection decision—that part is not your business.

Maintain the right balance between making your customer’s life a little easier by being a meaningful supplier without becoming a potential scapegoat. Do so by paying close attention to the dynamic and with simple systematic communication tools. Do you have these in place? Some would argue that a statement in the product warranty is not enough.

Exceptions to this “bright line” rule exist, of course. But, if you recognize and treat product selection as an exception, then your eyes must be wide open—you are performing a conscious act, making a choice. With that, the good business person in you has the chance to not only weigh risk and reward, but will also assure the record outlines the specific scope of your role.

Paul R. Gary is the prinicipal of The Gary Law Group, a law firm based in Portland, Ore., emphasizing legal issues facing manufacturers of windows and doors. He welcomes feedback about articles published in Window & Door and can be reached at 503/227-8424 or paul@prgarylaw.com.