Testing, Testing

Responding to testing notice and requests
By Matt Johnson
July 3, 2017
COLUMN : Legal | Strategies & Practices

Most window and door companies have received the call that the products they made or sold are being tested at a jobsite… in less than two days. The dealer, installer or builder on the other end of the line wants a representative on site when the test goes forward. Real dollars are at stake in terms of product waiting to ship to the job or potential legal responsibility. How do you respond?

These scenarios arise quickly. Many manufacturers have not given thought to the issues surrounding testing notice and are unprepared to respond. When every request for testing is treated as a fire drill, there is little consistency in regard to response or consideration of risk management. Without a thoughtful approach on how to respond to testing demands and the issues to consider, manufacturers are at risk of increased project costs, warranty expansions and litigation exposure in general.

Identifying the scope

An important first step toward testing in general is to appreciate that the demands themselves come in varying types. It is critical to get as much information as possible about the test and its purposes. Sometimes the test is a product quality assurance test. Other times, testing is in response to observed or contemplated damage. Still others involve testing the work of others next to fenestration. Appreciating the nature of what is being tested and why can shape the testing methods and applicable standards.

It is also essential to understand the purposes and method of the proposed test because the standards for forensic evaluation of water intrusion often require the participation of manufacturers or installers as “interested parties.” (See, for example, AAMA 502, 511 and ASTM 2128, 10.2.) Participation, however, is not simply observation.

Active collaboration with interested parties is important here because it can help ensure the validity of test methods and procedures. It can also help the overall forensic analysis because site testing of window and door products inherently involves variables of installation and other building conditions not necessarily accounted for in NAFS certification testing.

The difference between laboratory and field testing is acknowledged by the standards themselves. For example, ASTM E 1105, Section 5.2, provides that: “Field performance may vary greatly from laboratory performance since the supporting structure of the test specimen, methods of mounting, and sealing in the laboratory can only simulate the actual conditions that will exist in the building. Shipping, handling, installation, acts of subsequent trades, aging, and other environmental conditions all may have an adverse effect upon the performance of the installed product.”

Understanding this, when a manufacturer receives a notice of testing, it is important to obtain information regarding the contemplated testing parameters and contribute to their development, if appropriate. In practice, many product sales are now conditioned on the active participation of those making and selling window and door products.

Gauging impact and obligation

In developing a response strategy, manufacturers must consider the impact testing may have on sale commitments and contractual obligations. Appreciating where a company fits in the distribution chain, and the contractual commitments that exist because of that position, are fundamental.

It is equally important to understand and announce that you have no contractual obligation to test, if accurate. An installer’s acceptance of a 10 percent QA/QC verification testing does not necessarily oblige a manufacturer to participate in the test; the manufacturer could refuse.

However, rest assured that, if there is a failure, fingers will likely point toward a non-attending manufacturer. Therefore, it is wise to balance the actual contractual obligations and those that might be implied, in determining how to respond to any notice for testing.

Even where there are no contractual obligations, some terms and conditions of sale used by manufacturers and distributors expressly exclude any obligation to attend or pay for testing. Evaluate these “fine print” terms when weighing a response to testing.

A manufacturer that wishes to rely on these terms must be sure they are clear, conspicuous, and effectively communicated to the appropriate parties. Equally, any potential conflict between terms and conditions and separate contract terms must be weighed to decrease the potential for a breach of contract claim.

Beyond terms and conditions, the response to any testing demand should ultimately fall into the realm of warranty. Whether a warranty for a window and door product or for labor that accompanied its installation, a failure or problem identified in a test may find itself subject to repair via the applicable warranties.

Caution is due here because a good warranty will specifically identify that it only applies to established or observed conditions. Product testing is often used to formulate a “repair protocol” that is stretched to products that have not been tested. Using proper language in a warranty can help limit this potential, while at the same time honoring a commitment to resolve issues that are identified.

Documentation

Documenting a position in response to testing notice is essential. Be prepared to provide a written objection to testing, even refusing to attend where the timing of the notice or proposed method is insufficient. Equally, be willing to collaborate on testing, if appropriate, or object that such collaboration was not sought or refused.

In any circumstance, a written statement regarding the contractual obligations and warranty remedies available can help establish legal positions and often provides customers positive reinforcement during what may be a difficult situation. A documented response, legally-vetted, can also document your then-present position if the testing leads to a later claim for damages.

There are many issues for consideration beyond the simple availability of personnel when the call regarding product testing comes in. Balance the specifics regarding the test and its purposes with the contractual and warranty commitments companies have presented. Properly considered, a thoughtful approach that is communicated and documented in an appropriate fashion may just help avoid a later call to or from the lawyers.

The author is a member of The Gary Law Group, a Portland-based firm specializing in legal and risk issues facing manufacturers of glazing products. Write him at matt@prgarylaw.com.