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Shop Drawings and Submittals: Liability Associated with Submittal Reviews

By Kevin O'Beirne, PE, FCSI, CCS, CCCA, CDT posted 03-02-2021 10:20

  

This is the third in a six-part series of blog posts on shop drawings and submittals.  Previous posts have addressed: definition, purpose, and necessity of submittals; and the various types of submittals.  Forthcoming posts in the series will address: submittal review stamps, submittals with deviations from contract requirements, and delegated design submittals.

 

It is a mistake for design professionals to treat reviewing contractor-furnished shop drawings and submittals as a mundane, plug-and-chug task to be delegated to under-qualified reviewers. As discussed in this blog post, there is substantial professional liability and other risk associated with submittal reviews.

 

Submittal reviews are an extension of the architect’s, engineer’s, or geologist’s design services. Therefore, it is essential that only qualified personnel perform such reviews under the active supervision of the design professional who sealed and signed the associated drawings, specifications, and related design documents. Via shop drawings and submittals, the contractor is proposing certain materials, equipment, fabrication techniques, and features for the completed construction. The design professional is to review such submittals for both compliance with the construction contract and the project’s design intent. Because bidders and contractors are typically not privy to all details of the project’s design intent, it is common for contractors to seek to reduce costs and improve constructability through the materials, equipment, fabrication techniques, and features proposed via submittals. Such matters have strong potential to affect the project’s ability to achieve the design intent and, sometimes, can affect health, safety, and welfare.

 

A Sledgehammer-Like Case Study

 

The poster child for shop drawing reviews gone horribly wrong is the 1981 collapse of suspended walkways in the atrium of the Hyatt Regency Hotel in Kansas City, Missouri. It remains the worst structural engineering accident in United States history, aside from acts of terrorism.

 

The new hotel’s lobby featured a four-story atrium crossed by a “skywalk” system with three levels of walkways, each 120 feet long. The fourth-floor walkway was directly above the second-floor walkway, while the third-floor walkway was offset from the others. To achieve a lightweight, airy look, the walkways were suspended from above via slender, 1.25-inch diameter metal rods. The supports’ original design featured 45-foot rods with six inches of threading at one end to connect the second-floor walkway and six inches of threading 25 feet above, to connect the fourth-floor walkway. A metal connector transferred loads from beams under the edges of each walkway to each of the supporting rods. The original design was adequate to support the walkways’ dead load and live loads.

 

During the hotel’s construction (1978-1980), the contractor hired a structural steel fabricator that, in turn, hired a structural steel detailer to prepare the structural steel shop drawings, including the skywalk system. As is fairly common even today, the detailer, while very experienced, was not a licensed professional engineer. The detailer and structural steel fabricator concluded that it was impractical to fabricate the 45-foot support rods with two separate threaded areas, as required by the drawings and specifications prepared by the hotel’s architect and structural engineering subconsultant. In a telephone call with the licensed structural engineer, Dan Duncan, serving in de-facto responsible charge (however, the structural engineering firm’s owner, Jack Gillum, had sealed and signed the structural drawings and specifications), the fabricator described the difficulties in fabricating the support rods as originally designed. The structural engineer orally agreed to a new, two-rod support design described below. Accordingly, the structural steel shop drawings were prepared and submitted.

 

The revised design of the supports for the second floor and fourth-floor walkways used two separate support rods instead of continuous rods 45 feet long. The second-floor walkway was connected to its supporting rods as originally designed, but those rods were, themselves, connected to the connectors between the fourth-floor walkway and the rods supporting the fourth-floor walkway from above. Thus, the load on the fourth-floor walkway’s connector pieces was doubled from its original design. They were barely able to support the system’s dead load, without any people or other live loads on the walkways.

 

Due to short staffing at the structural engineering firm, review of the atrium’s structural steel shop drawings, including the skywalks, was assigned to a junior staff member who had previously failed his professional engineering licensing exam. The shop drawing reviewer later testified he noted the changed design of the rods and fourth-floor connectors. However, new calculations were not prepared because the shop drawing reviewer lacked knowledge of how to perform such an analysis. He did, however, bring the changed design to the attention of the structural engineer serving in de-facto responsible charge, Dan Duncan (who was a licensed professional engineer, but was only in his early- to mid-30s), who orally replied that he was already aware of the changed design and it was acceptable because it was “generally the same” as the original design. Accordingly, the shop drawings were approved, and the walkways were constructed according to the approved shop drawings.

 

When a portion of the atrium’s structural steel collapsed during construction, the structural engineering firm’s principal, Jack Gillum, who had sealed and signed the construction drawings and specifications, assured the firm’s client—the project’s architect—and the hotel owner, that he would personally check every structural connection in the atrium. Apparently, this promise did not extend to the atrium’s skywalks’ connections. The state licensing board later found the structural engineers culpable of misrepresentation.

 

During the final stages of construction, a drywall subcontractor’s worker noticed substantial deflection in the walkways’ supports, but did not raise an alarm, believing all structural steel deflects and there was no need for concern.

 

The new hotel open in 1980. During the evening of July 17, 1981, a big band dance was held in the lobby, attended by over 1,500 people. The bar area was directly underneath the second-floor walkway. During the event, when approximately seven people were on the fourth-floor walkway and 40 to 50 people were on the second-floor walkway, the fourth-floor walkway’s connectors’ structural capacity was exceeded and failed. The fourth floor and second-floor walkways collapsed into the lobby’s crowded bar area, killing 114 people and injuring 216 others.

 

Lawyers swarmed. Every defendant—including the hotel owner, hotel management firm, the architect, structural engineers, and contractor—denied all legal liability. More than 300 civil lawsuits sought a total of $3 billion. At least $140 million was awarded to victims and their families.

 

The Missouri board for licensing design professionals tried the project’s structural engineers of Jack D. Gillum & Associates who designed the walkways and approved the shop drawings. Among other arguments, the structural engineers contended: (1) because the fabricator and detailer were not under their direct supervision and control, the structural engineers had no responsibility for design changes made by the detailer and fabricator, and (2) because the structural engineers’ shop drawing review stamp indicated “Reviewed” instead of “Approved”, the structural engineers contended they were not responsible for the changed design and the tragedy. The licensing board rejected such arguments and the structural engineers appealed to the Missouri Supreme Court.

 

 In Duncan v. Missouri Board of Architects, Professional Engineers, and Land Surveyors (1988), the court found the engineers were grossly negligent, guilty of misconduct, and exhibited unprofessional conduct in their practice of engineering. The engineers were acquitted of all associated criminal charges, but Jack D. Gillum & Associates lost its engineering licenses in Missouri, Kansas, and Texas, experienced public humiliation, was involved in numerous civil lawsuits, and experienced other adverse consequences. Both Jack Gillum, who had sealed and signed the construction drawings and specifications, and Dan Duncan, the licensed structural engineer in de-facto responsible charge, lost their professional engineering licenses and their careers.

 

The project’s construction contract had included AIA A201—1977, Standard General Conditions of the Contract for Construction. As a result of the tragedy, the American Institute of Architects (AIA) significantly expanded the language in AIA A201 concerning shop drawings and other submittals. The Engineers Joint Contract Documents Committee (EJCDC) did likewise in its own standard general conditions and also published a white paper, “Focus on Shop Drawings”. Various industry panels were convened, and other guidance documents were developed to heighten design professionals’ awareness of their responsibility for reviewing shop drawings and other submittals.

 

Admittedly, the 1981 Kansas City Hyatt Regency skywalk tragedy is in a class by itself. However, it remains a stark warning to design professionals of the importance and risk of submittal reviews. Despite the passage of 40 years, the disaster has lost none of its relevance because it could certainly happen today.

 

Don’t Let it Happen on Your Project

 

Among the best ways for a design professional to reduce their risk associated with reviewing shop drawings and other submittals is to ensure that only appropriately qualified personnel perform such reviews, working under the direct supervision and control of the design professional who sealed and signed the associated drawings, specifications, and other design documents. Reviewing shop drawings and submittals is not a task for inexperienced personnel.

 

However, because submittal reviews are time consuming and often viewed as drudgery, in practice they are often assigned to less-experienced staff, which increases the risk to the design professional, owner, contractor, and the public.

 

The design professional who sealed and signed the drawings and specifications for the work should have unit responsibility and liability for the design and its associated submittal reviews. When the design professional who sealed and signed the subject drawings and specifications is no longer available, a duly designated successor design professional-in-responsible-charge must be appointed in accordance with applicable laws and regulations governing the associated design profession. A design professional-in-responsible-charge is required throughout the project’s construction.

 

It is inappropriate to have less-experienced or under-qualified personnel perform reviews of shop drawings, product data, samples, and other submittals of a technical nature without the active supervision and control of the associated design professional-in-responsible-charge. For example, having the architect’s or engineer’s onsite construction observer (“resident project representative”) perform such reviews at the field office, isolated from the design professional-in-responsible-charge, may be inconsistent with the design professional’s obligation to exert active, supervisory control.

 

Administrative submittals that do not affect the project’s design or the acceptability of the work may not constitute the statutory definition of the “practice of architecture”, or “practice of engineering” or geology and, therefore, do not necessarily have to be under the control of the associated design professional-in-responsible-charge. Such submittal reviews must still, however, be performed consistent with the applicable standard of care.

 

Adequate budget for submittal reviews is also necessary to reduce the potential for cutting corners to save money. Design professionals’ project managers and design professionals-in-responsible-charge must clearly communicate to each project team member expectations for submittal reviews.

 

Sufficient time should also be allowed for proper performance of submittal reviews. Both AIA A201 and EJCDC C-700, Standard General Conditions of the Construction Contract, require contractor submittal of and the design professional’s acceptance of a “schedule of submittals” at the start of construction to establish a mutually-understood time allowed for each submittal review. In establishing such schedules, adequate time should be allowed, and the design professional should understand the contractor’s need for prompt submittal reviews to maintain compliance with the construction progress schedule.

 

While there may be more risk associated with shop drawings, product data submittals, and samples, all submittals have attendant liability. As indicated in the model language of widely-used professional services agreements, such as 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 is to review all submittals—regardless of submittal type—with the same level of skill, care, and judgement. The applicable standard of care applies to all professional services rendered under the professional services agreement, including reviews of all submittals.

 

Limitations on Submittal Reviews

 

The design professional’s personnel performing submittal reviews should be acutely aware of and comply with contractual limitations on the extent of their review of submittals. To do otherwise increases the risk to the design professional and, possibly, the project owner.

 

The limits of the engineer’s review are clearly indicated in Paragraph 7.16.C of EJCDC C-700—2018. Also, C-700’s Paragraph 7.16.A indicates the contractor’s obligations before transmitting each submittal to the engineer.

While the principal provision on contractor submittals in AIA A201—2017 is Section 3.12, limitations on the architect’s review of submittals are in Section 4.2.7. These limitations on the architect’s review are very similar to those indicated for the engineer in EJCDC C-700—2018 Paragraph 7.16.C.  Sections 3.12.5, 3.12.6, and 3.12.9 of A201—2017 establish the contractor’s obligations prior to furnishing submittals, similar to C-700 Paragraph 7.16.A.

 

As will be more fully addressed in the next post in this series (“Shop Drawings and Submittals: Submittal Review Stamps”), the basic purpose and limitations of the design professional’s review, together with a brief recapitulation of the contractor’s obligations prior to furnishing submittals, should be indicated in the disclaimer language on the design professional’s submittal responses.

 

The corresponding model agreements for professional services, such as EJCDC E-500—2020 Exhibit A—Paragraph 1.06.B.20, and AIA B101—2017 Section 3.6.4.2, are well-coordinated with their associated construction general conditions, although EJCDC E-500 more clearly delineates the limits of the engineer’s review responsibilities than does AIA B101.

 

To illustrate: Both AIA A201 and EJCDC C-700 require the contractor to field verify all dimensions and quantities before transmitting a shop drawing to the design professional; despite this, it is common to receive shop drawings with fabricator comments such as, “Furnish dimension here,” or “Verify required quantity.” It is not the design professional’s responsibility, nor is it in the owner’s or design professional’s interest, for the design professional’s shop drawing reviewer to undertake the contractor’s responsibilities by attempting to provide dimensions and quantities on shop drawings, no matter how well-intentioned. If such data marked on the shop drawing by the design professional are incorrect, change proposals and claims from the contractor are likely.

 

Don’t Share Others’ Liability

 

When a portion of the design was prepared by a subconsultant, only the subconsultant’s submittal review stamp should appear on the submittal returned to the contractor. Over the years, this writer has encountered a widespread and often stubbornly held view among design professionals performing submittal reviews that both the subconsultant’s and the prime consultant’s submittal review stamps should appear together. The likely result of such practice, however, would be for a court or arbitrator to assign liability equally to both, logically assuming that, if both firms’ submittal review stamps appear on the same submittal, the firms equally shared the review and liability. It is best for design professionals to maintain clear lines of professional liability and responsibility.

 

For most traditional project delivery methods, including design-bid-build, design-negotiate-build, construction manager as advisor (CMa), and construction manager at risk (CMAR), the owner has no obligation to review, comment on, or take any action on contractor submittals. However, many owners—especially public owners—do so. This has potential to blur the lines of contractual  and professional liability for submittal reviews for reasons similar to those presented above concerning two separate design professional consultants’ review stamps on the same submittal.

 

When an owner, owner’s program manager, or prime consultant insists on furnishing submittal review comments to the design professional responsible for taking action on a shop drawing or other submittal, optimally, such comments, when presented in writing, should include an introductory statement such as:

The [Owner’s] [Prime Consultant’s] comments, below, are presented to the [Design Consultant] for consideration during [Design Consultant’s] review of the submittal and, if accepted by the [Design Consultant] following [Design Consultant’s] due diligence, shall be appropriately incorporated into, rather than merely attached to, [Design Consultant’s] final comments on the associated submittal. [Owner’s] [Prime Consultant’s] comments are not intended to reduce or mitigate, in any way, [Design Consultant’s] contractual and professional liability for the design and [Design Consultant’s] responsibilities under the associated professional services agreement.

 

Design-Build Submittals

 

Design professionals’ responsibility and liability for reviewing submittals does not vary by project delivery method. Even on design-build projects, where the design professional is part of the same team as the contractor, the design professional must still review shop drawings and other submittals. In some design-build contracts, such as EJCDC D-700—2016, Standard General Conditions of the Contract between Owner and Design-Builder, Paragraphs 8.02.G and H, the project owner may have an express or inferred right to rely on the design professional’s submittal reviews performed for the design-builder.

 

A notable exception to this blog post’s section, “Don’t Share Others’ Liability” (regarding owners’ not furnishing comments on submittals) is design-build project delivery, in which the owner (or its third-party owner’s consultant, which is not the project’s design professional) has contractual responsibility for certain submittal reviews, especially the design-builder’s design submittals, such as construction drawings and specifications. Most standard owner—design-builder contracts in widespread use in the United States expressly address this. However, some contracts and owners will allocate to the owner responsibility for reviewing some or all of the design-builder’s construction shop drawings and product data submittals. Owners should be aware of the potential for such reviews to muddy the waters of professional liability for the design-builder and its project design professional. To this writer’s knowledge, this is clearly addressed only in the model language of EJCDC D-700—2016, Paragraph 8.02, and EJCDC D-800—2016, Guide to the Preparation of Supplementary Conditions of the Contract between Owner and Design-Builder, Paragraph SC-8.01.F. These provisions of EJCDC’s D-Series Documents allow the owner the ability to comment on specific construction shop drawings, product data submittals, and samples expressly indicated in the owner—design-builder contract, but reserve to the design-builder and its project design professional unit responsibility for the associated professional liability.

 

Conclusions

 

Because reviewing contractor-furnished submittals has significant professional liability and other associated liability, such services should always be performed by qualified personnel acting directly under the supervision and control of the associated design professional-in-responsible-charge. All members of the project team should understand and comply with other pertinent matters, as presented in this blog post, to maintain clear lines of liability for submittal reviews. This blog post is only a high-level overview of submittal review liability issues and readers are encouraged to perform further research and self-education and, where appropriate, obtain advice from experienced legal counsel.

 

Forthcoming posts in this series will address: submittal review stamps, submittals with deviations from contract requirements, and delegated design submittals.

 

Copyright 2021 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.

The author of this blog post is not an attorney and nothing in this blog post is intended as legal advice.

 

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

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