Construction Today - Volume 16, Issue 2 - 85
IN THIS SECTION
By sending the submittal to the design professional for review,
you are saying to the owner and the designer professional that you
reviewed and approve of the submittal; determined and verified materials, field measurements and field construction criteria, or will do so;
and checked and coordinated the information in the submittal with
the contract requirements. Several court rulings have found contractors liable for worker safety based upon the contents of a submittal.
Architects are not responsible for the accuracy and completeness of
details, such as dimension and quantities, installation instructions or
equipment performance. The AIA general conditions are clear that the
architect's review does not constitute approval of safety precautions or
construction means or methods, techniques, sequences or procedures.
Call out and notify architects of deviations from the contract documents. If the shop drawings deviate from the contract documents,
you have to get the architect's written approval for the proposed
deviation. If the architect approves the shop drawing but does not
provide the required specific documentation, the contractor remains
at risk for the deviation in the submittals.
Do not perform work on the submittal without written approval.
Contractors are prohibited by contract from performing any work covered by the submittal until the architect or engineer approves it. Work
performed without the written approval is at the contractor's risk.
Get clarification if a change in the scope of work is based on shop
drawings. Courts have differed on the role of shop drawings in cases
concerning scope of work. In United States vs. Henke Construction Co.
46, a contractor sought recovery for the cost of additional labor and
material as the result of the government-owner's refusal to "consider,
approve or act upon" certain shop drawings. The general contractor argued that failing to approve or disapprove the shop drawings caused it
damage because its installation reflected the work shown in the shop
drawings and included work over and above what was called for by
the contract. The court found against the plaintiff, citing the plaintiff 's
false assumption that shop drawings were required for the work.
However, if shop drawing review is required, the approval may
affect the scope of work. In Ozark Mountain Granite & Tile, Co. vs.
Dewitt Associates, Inc., the general contractor argued there was work
within the scope of Ozark Mountain's contract not shown on the shop
drawings. The court of appeals found in favor of Ozark Mountain,
citing a reasonable inference that the disputed areas were within the
contract, in part, because the definition of the scope of work referenced the "details of the shop drawings."
Act in good faith. This includes doing everything you can to comply
with the contract and following industry practices during the submittal process, especially those concerning "reasonable timeliness." In a
recent case, the Missouri Supreme Court concluded there was sufficient
evidence to show that a substantial part of the delay in a project's completion was caused by the state's untimely review of shop drawings.
D'Agostini Land Company nears completion on a
major industrial park.
brings Christian values to
Axiom Builders Inc.
D'Agostini Land Company
ClearSpan Fabric Structures Inc.
100 Garco Construction
102 SL Green Realty Corp. - One
105 Maeda Corporation USA
108 Shane Patrick Associates Inc.
110 Simile Construction
112 Ryder Construction
To have a successful project of any
complexity, the submittal process must be
followed and managed. Though not part of
the contract documents, the shop drawings
assure the owner is delivered what it wants,
the designer's design is brought to fruition
and the contractor complied with the contract's obligations. Careful attention to the
contractual obligations related to the process
and attention to details in the submission
and review process will provide smooth project delivery without surprises, finger-pointing or additional expenses.
Ken Slavens is a partner in Husch Blackwell LLP's St. Louis office and belongs to
the firm's real estate, development and construction industry group.
VOLUME 16, ISSUE 2 CONSTRUCTION-TODAY.COM