This is the fourth in a six-part series of blog posts on shop drawings and submittals. Previous posts have addressed: definition, purpose, and necessity of submittals; the various types of submittals; and liability associated with submittal reviews. Forthcoming posts in the series will address submittals with deviations from contract requirements and delegated design submittals.
Much attention has been devoted to the topic of review stamps (or, in the digital era, facsimiles of stamps) for shop drawings and other contractor-furnished submittals. This blog post presents recommended practices and language for submittal review stamps.
Submittal review stamps are important because they are the means by which the results of a submittal review are presented, indicating the disposition assigned to the submittal and the limits of the review. Such stamps are often a focal point regarding liability associated with review of a submittal.
Contractors’ Submittal Approval Stamps
Standard general conditions in widespread use in the United States, including AIA A201—2017, Standard General Conditions of the Contract for Construction, and EJCDC C-700—2018, Standard General Conditions of the Construction Contract, require the contractor to apply an approval stamp on all shop drawings, product data, samples, and other submittals before transmitting them to the design professional for review. Because of the contractor’s general warranty and guarantee that all the work shall comply with the contract documents and not be defective, contractors’ submittal approval stamps should not include limitations or disclaimers.
The following is suggested language of the contractor’s submittal approval stamp, that may be required via a project’s specifications Section 01 33 00 – Submittal Procedures:
Contract Designation: _________________________________________________
‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Reference ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑
Drawing No.: ________________ of
Location of Work:
Submittal No. and Review Cycle: _____________
Coordinated by Contractor with Submittal Nos.: _____________________________
I hereby certify that Contractor has satisfied Contractor’s obligations under the Contract Documents relative to Contractor’s review and approval of this Submittal, including that I have: (1) reviewed and coordinated the Submittal with other Submittals and with the requirements of the Work and the Contract Documents; (2) determined and verified: (a) all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect to the Submittal, (b) the suitability of all materials and equipment offered with respect to the indicated application, fabrication, shipping, handling, storage, assembly, and installation pertaining to the performance of the Work, and (c) all information relative to Contractor’s responsibilities for means, methods, techniques, sequences, and procedures of construction, and safety precautions and programs incident thereto; (3) confirmed that the Submittal is complete with respect to all related data included in the Submittal; and (4) clearly and expressly indicated all proposed deviations (if any) from the requirements of the Contract Documents both in the Submittal itself and in the Submittal’s transmittal letter. Accordingly, this Submittal is hereby approved for Contractor by:
Approved for Contractor by: ”
Where brevity is desired, the above paragraph may be shortened by eliminating all text following the first comma.
Elements of the Design Professional’s Submittal Review Stamp
Design professionals’ submittal review stamps, whether an inked stamp, an electronic facsimile of a stamp (often part of a memo-style comment sheet), or as generated by online document management systems, usually have three main elements:
- The disposition assigned by the design professional.
- Disclaimer language.
- Indication of: (a) the design professional’s company name; and (b) the name of the individual who performed the review; and (c) the name of the design professional-in-responsible-charge of the review; and (d) the date of the review.
Item “3.(c)”, above, is probably rare on submittal review stamps and, when used, would apply only to submittals of an architectural, engineering, or professional geology nature concerning technical matters. Its utility is obvious: the design professional-in-responsible-charge of the review would be identified and clearly indicated, and such indication may encourage design professionals-in-responsible-charge to exercise appropriate supervisory control over the review. It may also be appropriate to indicate the individual’s state and license number.
In addition to these are the design professional’s comments (if any) on the submittal, whether typed on a comment sheet, manually marked on a paper copy of the submittal, or electronically marked in an electronic copy of the submittal (such as a PDF file). Such comments must be clear, concise, complete, correct, and coordinated.
The balance of this blog post focuses on the design professional’s submittal dispositions, disclaimer language, and how and where the review stamp should be applied to the submittal.
Disposition Assigned by the Design Professional
The second post (“Shop Drawings and Submittals: Types of Submittals”) in this series discussed the four types of submittals recommended by the Construction Specifications Institute (CSI)—action submittals, informational submittals, closeout submittals, and maintenance materials submittals—and suggested that the submittal type may drive the dispositions assigned by the design professional.
Action submittals are arguably the most important type and require the design professional’s written approval before the associated item’s raw materials are purchased, or the item is fabricated or shipped. In contrast, informational, closeout, and maintenance materials submittals are usually either acceptable (when they indicate full compliance with the contract’s requirements) or unacceptable. This suggests separate submittal review stamps may be desirable for: (1) action submittals, and for (2) informational-closeout-maintenance materials submittals. As will be discussed more fully in the forthcoming sixth post (“Shop Drawings and Submittals: Delegated Design Submittals”) in this series, this writer also recommends a third submittal review stamp specifically for delegated design submittals.
Most of the design community’s discussion of submittal stamps has focused on dispositions assigned to action submittals, regarding whether a design professional should explicitly “approve” shop drawings and other action submittals. Many in the design community, embracing decades-old advice from certain professional liability insurance carriers, advocate using dispositions such as “No Exceptions Taken”, “Furnish as Submitted”, or a simple, meek “Reviewed”, rather than expressly marking action submittals as “Approved”. The rationale often expressed for using what this writer calls, “weasel words” (i.e., “No Exceptions Taken”, “Furnish as Submitted”, “Reviewed”, and similar terms) is that “taking no exceptions” somehow confers on the design professional less liability than does “approved”.
In this writer’s opinion, using weasel word dispositions is useless. Anyone who believes “taking no exceptions” instead of “approving” a shop drawing reduces their liability should formulate an appropriate answer to the following request by a cross-examining attorney: “Mr. Design Professional, please explain to the jury the difference between ‘approving’ and ‘taking no exceptions’ in a shop drawing review.” There is no good response. As discussed in the first post (“Shop Drawings and Submittals: Definition, Purpose, and Necessity”) of this series, the purpose of design professionals’ review of submittals is clear and, no matter the weasel words on the design professional’s review stamp, the liability is the same. Indeed, in the litigation following the 1981 collapse of the skywalk system in the Hyatt Regency Kansas City Hotel, discussed in the third post (“Shop Drawings and Submittals: Liability Associated with Submittal Reviews”) of this series, courts rejected the structural engineer’s argument that it was not culpable, because it stamped the fatal shop drawing as “Reviewed” rather than “Approved”. For this case, the courts concluded the disposition “Reviewed” had the same meaning as “Approved”.
Furthermore, for decades, both EJCDC C-700 and AIA A201, together with their associated agreements for design professional services (EJCDC E-500 and AIA B101), have consistently used the term “approve” when referring to the design professional’s reviews of shop drawings, product data, and samples. Regardless of whether one takes refuge behind the mirage-like shield of disposition weasel words, the submittal dispositions assigned by the design professional should be consistent with the project’s general conditions and other construction documents.
A drawback of weasel word dispositions is their use may lull the design professional into a false sense of security. Architects’ or engineers’ staff members who believe “taking no exceptions” on a shop drawing reduces their risk and liability may sometimes be less diligent in their reviews than a design professional who expressly “approves” shop drawings. Again, the design professional’s liability is the same regardless ofwhether weasel words are used.
Therefore, this writer recommends the following design professional dispositions for action submittals:
- Approved as Noted
- Revise and Resubmit
“Approved” means the design professional has reviewed the action submittal with skill, care, and judgement consistent with the applicable standard of care and, in accordance with AIA A201 and B101, or EJCDC C-700 and E-500, has determined the submittal appears to be consistent with the contract documents and the design professional’s design intent for the completed project. An “approval” allows the contractor, subcontractor, or supplier to purchase the raw materials and proceed with fabricating (and shipping, unless later submittal of source quality control results is required) the associated item.
“Approved as Noted” is an approval conditioned on the contractor, subcontractor, or supplier complying fully with the design professional’s written comments on the submittal. Failure to comply fully with the written comments typically nullifies the approval.
“Revise and Resubmit” means the design professional believes the submittal, as furnished, cannot be approved without revisions and resubmittal. Thus, “Revise and Resubmit” does not constitute an approval. Submittals with a “Revise and Resubmit” disposition require detailed, written comments clearly indicating the non-compliance.
“Rejected” is typically rarely assigned and means, in essence, “This submittal wasn’t even close,” and implies that, even with revisions and resubmittal, the submittal would not be approvable. This disposition may also be assigned to incomplete submittals. Alternative terms such as “Not Approvable” or “Not Acceptable” can be used in lieu of the rather harsh sounding “Rejected”, although this writer believes terms like “Not Acceptable” are perhaps less clear than “Rejected”.
This writer has experience with action submittals marked, “Approved as Noted/Resubmit”. Such a disposition seems to be used on time-sensitive submittals for items that need to be procured or placed into fabrication, but where the design professional’s comments were of such a nature that a “record resubmittal” indicating full compliance with the comments is required. Because of its vagueness, this writer recommends against its use. Such a disposition is likely to provoke uncertainty even when its meaning is clearly articulated in specifications Section 01 33 00 – Submittal Procedures.
Concerning informational, closeout, and maintenance materials submittals, a common approach in the industry is that, when such submittals indicate full compliance with the contract, an explicit, written response by the design professional is not required and the design professional indicates their acceptance of the submittal in their submittal log. When this approach is employed, the design professional should furnish to the contractor a copy of the submittal log not less than monthly and at any other time when requested by the contractor. The disposition that should be indicated on the submittal log is, “Accepted”. In fact, the term “accepted” is employed in EJCDC C-700 regarding the engineer’s review of the contractor’s construction progress schedules, schedule of submittals, and schedule of values.
Regardless of whether an explicit, written acceptance is furnished for informational, closeout, and maintenance materials submittals, when such submittals do not indicate full compliance with contractual requirements, the design professional must provide an written response indicating, “Not Acceptable”, “Unacceptable”, or similar language, together with detailed, written comments clearly explaining the reasons for non-compliance.
Some design professionals’ submittal review stamps include the disposition, “Submittal Not Required”. When the design professional receives a contractor submittal not required by the contract documents, this writer believes it should be promptly returned without review, without being recorded in the submittal log, and without the design professional affixing its stamp. However, this may be infeasible when submittals are furnished electronically via an online document management system. When submitted via a document management system, from the moment the submittal is uploaded by the contractor, it may be “in the system” and perhaps difficult to eradicate. Thus, for such circumstances, a disposition such as, “Submittal Not Required and Not Reviewed” may be necessary.
In some situations, using separate, electronic facsimiles of submittal review stamps for action submittals and for informational-closeout-maintenance materials submittals, may be impractical. For example, it may be difficult or impossible to set up multiple “stamps” in a project’s online document management system. Some design professional firms may lack confidence that their project teams will consistently use the correct stamp when multiple alternatives are available. Therefore, when a single comprehensive set of dispositions is necessary, this writer suggests:
- Action Submittals: Approved
- Action Submittals: Approved as Noted
- Action Submittals: Revise and Resubmit
- Action Submittals: Rejected
- Informational-Closeout-Maintenance Materials Submittals: Accepted
- Informational-Closeout-Maintenance Materials Submittal: Unacceptable
- Submittal Not Required and Not Reviewed
Disclaimer Language on Design Professional’s Review Stamp
Disclaimers are common on design professionals’ submittal review stamps. Often, one set of disclaimer language is appropriate for all types of submittals, aside from delegated design submittals. Based on research over many years, including guidance from leading professional liability insurers and advice from various experienced attorneys who represent design professionals, this writer suggests the following submittal review stamp disclaimer language:
Engineer’s action on this Submittal is subject to this note.
Engineer’s review is only for general compatibility with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents, and for general compliance with the information given in the Contract Documents.
Contractor shall be solely responsible for complying with the Contract Documents, as well as with Supplier instructions consistent with the Contract Documents, Owner’s directions, and Laws and Regulations. Contractor is solely responsible for obtaining, correlating, confirming, and correcting dimensions at the Site; quantities; information and choices pertaining to fabrication processes; means, methods, sequences, procedures, and techniques of construction; safety precautions and programs incident thereto; and for coordinating the work of all trades.
Engineer is not responsible for resubmittals or tracking progress of resubmittals.
The above is, obviously, for an engineering firm and employs terminology consistent with EJCDC C-700—2018. Minor modifications will be necessary for use with AIA A201 or other general conditions, such as changing the word, “Engineer” to “Architect”, as applicable.
The example disclaimer presented above is consistent with the limitations of the architect’s and engineer’s submittal reviews as indicated in AIA A201—2017 Section 4.2.7 and EJCDC C-700 Paragraph 7.16.C.
Although the design professional’s disclaimer on its submittal review stamp is not a contract document, in certain situations such disclaimers may be useful to design professionals. Disclaimer language consistent with the contract documents may help reinforce the limits of a design professional’s review and comments in any substantive disagreement related to the submittal review.
Such an example is Waggoner v. WW Steel Co. (Supreme Ct of Oklahoma, No. 55285, Nov. 30, 1982), in which a structural engineer was found not responsible for a failure during structural steel erection that resulted in two fatalities. The plaintiff accused the engineer of negligence because the engineer approved structural steel shop drawings with lifting eyes added solely for constructability. Because the lifting eyes were for the contractor’s means and methods of construction, the engineer was not responsible for the lifting eyes’ failure. Having disclaimer language on the shop drawing stamp, similar to that recommended above (“Contractor is solely responsible for…choices pertaining to fabrication processes; means, methods, sequences, procedures, and techniques of construction; safety precautions and programs incident thereto..”) would likely have bolstered the engineer’s defense.
Applying the Design Professional’s Review Stamp
Most Submittals require only one submittal review stamp applied by the design professional. Typically, the submittal review stamp is applied at or very close to the front of the submittal. When the stamp is on a page with the design professional’s comments, typically the page is included immediately following the design professional’s transmittal letter. Some design professionals’ transmittal letter forms include checkboxes to indicate the submittal disposition, but usually do not include any appropriate disclaimer language. Obviously, it is best to indicate the disposition assigned to the submittal only once and, preferably, on the same page as the disclaimer language.
However, certain submittals, such as multi-sheet shop drawings for fabricated materials (e.g., reinforcing steel shop drawings, structural steel shop drawings, or voluminous product data submittals addressing multiple material or equipment items) may need application of more than one submittal review stamp. Where the design professional applies more than one review stamp to a given submittal, each separately stamped part of the submittal should be separately recorded in the design professional’s submittal log. This helps reduce confusion and misunderstandings when, for example, certain sheets in the overall larger submittal are approved while others are “revise and resubmit”.
Where more than one design professional—whether multiple firms or multiple individual licensed design professionals-in-responsible-charge—are involved in the project, only one firm’s submittal review stamp and the name of one design professional-in-responsible-charge of the review should appear on each submittal. The only exception is when prominent, clarifying language is included to clearly indicate the parts of the submittal to which each stamp applies and the parts of the submittal for which each design professional-irresponsible-charge has responsibility. Absent such clarifying language, multiple reviewers’ submittal stamps, or the names of multiple design professionals-in-responsible-charge, on the same submittal—especially when more than one firm is involved—has potential to blur the lines of professional liability for the associated submittal review.
This blog post has presented recommended best practices, and associated rationales, for both design professionals’ and contractors’ submittal review stamps, including dispositions, disclaimer language, and applying the review stamp to submittals. These practices must always be consistent with the language and requirements of the associated construction documents and agreements for professional services. To do otherwise reduces clarity and muddies the waters of responsibility and professional liability for the associated submittal review.
Forthcoming posts in the series will address 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.
This post’s author is not an attorney and nothing in this blog post constitutes legal advice. Readers in need of legal advice should consult with qualified, experienced legal counsel.
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.