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This is the first in a six-part series of blog posts on shop drawings and submittals. Forthcoming essays in the series will address: the various types of submittals, liability associated with submittal reviews; submittal review stamps; submittals with deviations from contract requirements; and delegated design submittals.
Preparing, processing, and reviewing shop drawings and other contractor-furnished submittals is a labor-intensive construction stage activity for contractors and design professionals. While it is widely accepted that submittals are an often-tiresome part of construction, what are and are not submittals, and their purpose and necessity, are often not well understood.
What are and are not Submittals
Terminology concerning submittals is not universal, and the terms “shop drawing” and “submittal” are not synonyms, Standard general conditions in widespread use in the United States establish several defines terms pertinent to this topic. AIA A201--2017, Standard General Conditions of the Contract for Construction, includes:
“§ 3.12.1 Shop Drawings are drawings, diagrams, schedules, and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier, or distributor to illustrate some portion of the Work.
“§ 3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams, and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work.
“§ 3.12.3 Samples are physical examples that illustrate materials, equipment, or workmanship, and establish standards by which the Work will be judged.
“§ 3.12.4 Shop Drawings, Product Data, Samples, and similar submittals are not Contract Documents…”
EJCDC C-700--2018, Standard General Conditions of the Contraction Contract, defines “Shop Drawings” and “Samples” using language nearly identical to AIA A201 Sections 3.12.1 and 3.12.3, Also, Paragraph 1.01.A.41 of EJCDC C-700--2018 defines:
“41. Submittal—A written or graphic document, prepared by or for Contractor, which the Contract Documents require Contractor to submit to Engineer, or that is indicated as a Submittal in the Schedule of Submittals accepted by Engineer.Submittals may include Shop Drawings and Samples; schedules; product data; Owner-delegated designs; sustainable design information; information on special procedures; testing plans; results of tests and evaluations, source quality-control testing and inspections, and field or Site quality-control testing and inspections; warranties and certifications; Suppliers’ instructions and reports; records of delivery of spare parts and tools; operations and maintenance data; Project photographic documentation; record documents; and other such documents required by the Contract Documents. Submittals, whether or not approved or accepted by Engineer, are not Contract Documents. Change Proposals, Change Orders, Claims, notices, Applications for Payment, and requests for interpretation or clarification are not Submittals.”
From the foregoing excerpts, the following conclusions may be drawn concerning what are and are not construction submittals:
- Required shop drawings and other submittals are to be clearly indicated (listed) in the contract documents, although EJCDC C-700 also allows that submittals indicated in a schedule of submittals “accepted by the Engineer” but not expressly listed in the contract are also submittals. Conversely, if the contract documents do not expressly require a certain submittal, the contractor probably does not need to furnish it and, furthermore, the design professional should not accept, review, or comment on submittals furnished by the contractor that are not required by the contract. This will be addressed further in forthcoming posts in this blog series.
- Submittals, whether shop drawings or others, regardless of whether or not approved by the design professional, are not contract documents. Thus, submittals cannot change contractual requirements (i.e., submittals are not change orders) and are generally not enforceable under the contract. This is because shop drawings, product data, and samples indicate only how the contractor proposes to comply with the contract documents. Other submittals document how the contractor has complied with the contract. Shop drawings, product data, and samples that do not indicate compliance with the contract should not be approved by the design professional. Where an approved shop drawing or product data submittal or sample indicates something that exceeds the contract’s requirements and the design professional desires to hold the contractor to the higher standard indicated by the approved submittal, an associated contract modification should be issued concurrent with the design professional’s approval of the submittal. In addition to change orders, appropriate instruments for this are EJCDC C-942--2018, Field Order, and AIA G710--2018, Architect’s Supplemental Instructions, each of which is issued directly by the design professional and cannot change the contract price or contract times.
- All shop drawings are submittals, but not all submittals are shop drawings. This writer tends to consider as “shop drawings”: (1) fabrication and assembly drawings, usually having a title block, or (2) schedules, prepared specifically for the project. Here, “schedules” means a project-specific summary of systems and components, such as a schedule of HVAC equipment, schedules of doors and door hardware, or windows, or a schedule of paint systems by room and surface, or other, similar project information in a tabular format. In contrast, construction progress schedules, submittal schedules, and schedules of values are not “shop drawings”.
- Both AIA A201 and EJCDC C-700 recognize that “product data” differs from “shop drawings.” In general, product data are manufacturers’ pre-published information on the items proposed to be incorporated into the completed work. This writer generally considers “product data” to be copies of product manufacturer catalog pages and similar documents with contractor-made cross-outs and indications of proposed products and proposed options.
- “Samples” include field mock-ups--such as a section of masonry wall approved by the design professional and used as a standard of quality against which other masonry wall work is judged--samples delivered to the design professional’s office, paint color charts, and other types of physical examples of the color, quality and texture of the proposed work.
- Additionally, as indicated by EJCDC C-700--2018 Paragraph 1.01.A.41 and CSI SectionFormat, there are many types of submittals other than shop drawings, product data, and samples. The forthcoming second blog post in this series will address the various types of submittals.
- Not every document furnished by the contractor is a “submittal”, as expressly stated in EJCDC C-700--2018 Paragraph 1.01.A.41. Many documents transmitted by the contractor, such as requests for interpretation or clarification, change proposals, claims, applications for payment, contract closeout documents, contractually-requited notices, and others, are not “submittals” and, obviously, do not receive the contractor’s or design professional’s submittal approval stamps.
Purpose of Contractor’s Submittals
Submittals are required because project participants might interpret contractual requirements for the construction work differently and, before the products are purchased and fabricated, and the work performed at the site, it is essential that the contractor and design professional mutually understand how the contractor will fulfill its contractual obligations. Although submittals represent substantial administrative and professional effort by the project’s participants, they are critical to avoiding more-expensive misunderstandings, rework, claims, and disputes after project funds are expended.
Section 3.12.4 of AIA A201--2017 clearly states of submittals: “…Their purpose is to demonstrate how the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents for those portions of the Work for which the Contract Documents require submittals.”
Similarly, Paragraph 7.16.C of EJCDC C-700--2018 states in part, “Engineer’s review and approval [of Shop Drawings and Samples] will be only to determine if the items covered by the Submittals will, after installation or incorporation in the Work, comply with the requirements of the Contract Documents, and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents.”
Thus, submittals are a quality assurance “dialogue” between the contractor, its subcontractors, and suppliers, and the design professional, regarding how the contractor’s team proposes to comply with their contractual requirements. Source quality control submittals, field quality control submittals, operation and maintenance manuals, and certain other submittals document whether the contractor did, in fact, comply with the contract.
This interpretation of the purpose of submittals is consistent with the model language setting forth the design professional’s responsibilities in AIA B101--2017, Standard Form of Agreement between Owner and Architect, and EJCDC E-500--2020, Agreement between Owner and Engineer for Professional Services. The design professional’s responsibilities in reviewing submittals will be addressed in forthcoming posts on this blog.
Because the design professional’s review of contractor-furnished submittals is, in essence, an extension of the engineer’s or architect’s design services, not only is appropriate skill, expertise, and professional judgment required of personnel performing submittal reviews, such services also pose significant professional liability for the design professional. In contrast, in accordance with the Spearin Doctrine, the contractor need only comply with the construction contract, regardless of whether the contract is sufficient to achieve the owner’s project goals and the architect’s or engineer’s design intent.
Are Submittals Necessary?
Construction specifications require a lot of submittals, often an almost dizzying number of certifications by everyone associated with furnishing products or installing them into the work; qualifications statements for installers, applicators, contractors’ consultants, testing entities, and manufacturers (even though the latter are indicated by name elsewhere in the same section of the specifications); product data for every conceivable nut and bolt; and many, many others. Are they all truly necessary? Only the design professional who sealed and signed the associated specifications can truly say with certainty. Presumably, during preparation of the construction contract documents, with full knowledge of the project’s design intent and a reasonable notion of probable construction methods and challenges, the design professional gave careful consideration to the need for each submittal required by the contract and, if questioned on it, could clearly articulate their reason for requiring the submittal. That’s how it’s supposed to work.
Not all projects need every single submittal originally listed in the source documents used in developing the project’s construction specifications. Conversely, sometimes, additional submittals may be necessary. The specifier, working closely with the design professional-in-responsible-charge, should carefully consider the need for and criticality of each required submittal. Where a submittal is not truly necessary to demonstrate how the contractor will or has complied with the contract, consider deleting the required submittal before the contract is finalized. Shop drawings and product data are not the same as, say, operation and maintenance manuals and, therefore, shop drawings and product data often need not contain the same volume of information to achieve the purpose for which shop drawings and product data are required.
As clearly indicated in both EJCDC C-700 and AIA A201, the contractor has sole responsibility for its means, methods, procedures, techniques, and sequences of construction. Therefore, it is typically inadvisable for the contract to require submittals that address such matters. For example, contractors’ coordination drawings are relevant to means and methods of construction, not the project’s final outcome, and therefore typically should not be required by the contract or reviewed by the design professional.
This writer has observed some design professionals appearing to go somewhat overboard in the types of information demanded via submittals. Because shop drawings, product data, and samples are needed only to confirm the contractor understands and will comply with the contract’s requirements, as a rule of thumb, the information required via shop drawings, product data, and samples, may not need to be more voluminous than the requirements of the contract documents. Submittals that include voluminous information beyond what is required by the contract are probably superfluous when there is no corresponding contract requirement against which to enforce them.
The extent of required submittals should be commensurate with the project’s complexity, criticality, and the design professional’s construction stage budget for reviewing submittals. Where the project is not overly complex, and where failure of the work is less likely to affect health, safety, and welfare, a careful evaluation of the necessity of required submittals should be performed before finalizing the associated specifications.
This writer has encountered some design professionals who, perhaps believing themselves forward-thinking and innovative, have advocated that contractor-furnished submittals are entirely unnecessary because—so they contend—the contractor is obligated to comply with the drawings, specifications, and other contract documents. These people ask, “Cannot all those voluminous, time-consuming, tiresome, and liability-filled submittals be entirely eliminated?”
The answer is probably “no.” First, many expert witnesses who are registered architects or professional engineers would likely opine that design professionals’ typical standard of care (see: AIA standard of care essay; ACEC-CASE standard of care white paper) includes quality assurance and quality control responsibilities fulfilled through design professionals’ reviews of submittals and other, typical construction stage services, such as the design professionals’ periodic visits to the construction in progress. Second, while the types and volume of submittals required depend on the project, it is unlikely that owners or society in general--acting through legislative bodies, professional licensing boards, journalists, courts, and arbitrators--would countenance either placing themselves at increased risk of failures or letting the design professional off part of the hook of professional liability by embracing the abandonment of shop drawings and other contractor-furnished submittals.
This brief analysis has defined what are, and are not, contractor-furnished construction submittals and has articulated their purpose and necessity. Proper understanding to these key concepts is essential for design professionals to fulfill their contractual and ethical obligations while properly managing risk.
Forthcoming blog posts in this series will address: the various types of submittals, liability associated with design professionals’ submittal reviews, submittal review stamps; submittals with deviations from contract requirements, and delegated design submittals.
Copyright 2020 by Kevin O’Beirne
The content of this blog post is by the author alone and should not be attributed to any other individual or entity.
Kevin O’Beirne, PE, FCSI, CCS, CCCA is a professional engineer licensed in NY and PA with over 30 years of experience designing and constructing water and wastewater infrastructure for public and private clients. He is the engineering specifications manager for a global engineering and architecture design firm. He is a member of various CSI national committees and is the certification chair of CSI’s Buffalo-Western New York Chapter. He is an ACEC voting delegate in the Engineers Joint Contract Documents Committee (EJCDC) and lives and works in the Buffalo NY area. Kevin O’Beirne’s LinkedIn page.