This is the fifth 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; liability associated with submittal reviews; and submittal review stamps. The forthcoming final post in the series will address delegated design submittals.
Few contractor-furnished submittals cause more agita and heartburn than those with deviations from the construction contract’s requirements. Does a design professional’s approval of such a submittal also approve the contractual deviation? If not, can the contract be enforced after the item is purchased, fabricated, or installed into the work? Is an approved submittal with deviations a contract modification? This blog post explores these questions and related matters.
As discussed in the first post (“Shop Drawings and Submittals: Definition, Purpose, and Necessity”) of this series, and as further evidenced below, submittals—whether or not approved or accepted by the design professional—are not contract documents and, thus, cannot modify the contract. The extent to which this may be enforceable, however, may vary.
Thus, when a submittal with deviations is approved and has potential to affect other work, typically an associated contract modification must be concurrently issued. Because approval of such submittals typically does not involve any change in the contract price or contract times, an architect’s supplemental instructions (ASI) or engineer’s field order is often issued to formally incorporate the deviation into the contract. Field orders or ASIs are typically issued directly by the design professional, without approvals by or signatures of the owner and contractor; thus, ASIs and field orders can usually be prepared and issued with reasonable promptness.
Sources of Deviations in Submittals
“Or-equals” and substitutes are likely the most common means by which submittals with deviations come to the design professional; however, substitutes, should not be proposed via shop drawings and submittals. This section presents a basic introduction to substitutes and “or-equals” as they relate to the submittals process.
“Or-equals” are items not expressly indicated by name in the contract documents but are, in the sole opinion of the design professional, the equivalent to what is specified in the contract, bearing in mind that two, similar items by different manufacturers are rarely identical.
In contrast, substitutes are items or procedures that accomplish a purpose generally similar to what is required by the contract, but are not equivalent. An example of a substitute is an item of an alternative material that will have a service life that differs from the specified material; a reduced service life may result in a proposed price reduction if the substitute is approved, whereas increased service life may have an associated price increase. Another example of a substitute is proposal of a centrifugal pump where a positive displacement pump is specified. Each will convey the required fluid, but use very different mechanical methods with very different service requirements.
Because the design professional possesses the professional liability for the completed project, the design professional is the only entity that can approve proposed “or-equals” and substitutes. However, a prudent design professional consultant should typically confer with its client before approving a substitute or “or-equal”, but also should not allow their client to direct their approval or rejection of the proposal relative to technical or engineering-related matters.
The submittals process is usually where “or-equals” are properly proposed and approved. The contract documents, likely via Section 01 62 00 – Product Options, may require additional information with a submittal for a proposed “or-equal”. Because “or-equals” are equivalent to what is required by the contract, their approval typically does not require a contract modification and, thus, the design professional may approve an “or-equal” by approving the associated shop drawing, product data submittal, or sample. However, as discussed later in this blog post, certain “or-equals” may prompt issuance of a field order or ASI.
Substitutes, on the other hand, are a different matter. Typically, a separate, written request for approval of a substitute is required, usually in accordance with Section 01 25 00 – Substitution Procedures. By definition, a substitute does not comply with the contract documents and, thus, to be formally approved, a substitute requires a contract modification, such as a change order or, when the substitute has no effect on contract price or contract times, an ASI or engineer’s field order may be used to document the formal approval. After the contract modification, the typical submittals process is followed for the subject item or procedure. Therefore, submittals of shop drawings, product data, and samples are not appropriate for proposing approval of a substitute. Substitutes so proposed will typically be rejected by the design professional on procedural grounds. Once the substitute is approved by an appropriate contract modification, it is no longer a deviation from the contract’s requirements and ordinary submittal procedures apply.
Therefore, deviations from contractual requirements may be proposed via submittals for:
- proposed “or-equals”, or
- an item specified in the contract, whether via proprietary specifying or other specifying methods, but where the item nevertheless has deviations—presumably minor—from the contract’s requirements.
The latter may result from errors or omissions in the specifications or a manufacturer’s or supplier’s change in standard materials or fabrication techniques between the project’s final design and furnishing the associated shop drawing, product data submittal, or sample.
Contractual Procedures for Deviations in Submittals
EJCDC C-700—2018, Standard General Conditions of the Construction Contract, addresses contractual deviations presented in submittals as follows:
“[1.01.A] 37. Shop Drawings—… Shop Drawings, whether approved or not, are not Drawings and are not Contract Documents.
“[1.01.A] 41. Submittal—…Submittals, whether or not approved or accepted by Engineer, are not Contract Documents…
“[7.16.A] 3. With each Shop Drawing or Sample, Contractor shall give Engineer specific written notice of any variations that the Submittal may have from the requirements of the Contract Documents. This notice must be set forth in a written communication separate from the Submittal; and, in addition, in the case of a Shop Drawing by a specific notation made on the Shop Drawing itself.”
Furthermore, EJCDC C-700—2018 includes basic requirements for contractor-proposed “or-equals” in Paragraph 7.05 and contractor-proposed substitutes in Paragraph 7.06.
AIA A201—2017, Standard General Conditions of the Contract for Construction, similarly requires:
“§ 3.12.4 Shop Drawings, Product Data, Samples, and similar submittals are not Contract Documents...
“§ 3.12.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from the requirements of the Contract Documents by the Architect’s approval of Shop Drawings, Product Data, Samples, or similar submittals, unless the Contractor has specifically notified the Architect of such deviation at the time of submittal and (1) the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples, or similar submittals, by the Architect’s approval thereof.”
AIA A201—2017 does not include procedures for contractor-proposed “or-equals” or substitutes. However, basic, optional language for contractor-proposed substitutes is presented in Sections 126.96.36.199 and 188.8.131.52 of AIA A503—2017/2019, Guide for Supplementary Conditions.
Notable is that EJCDC C-700’s provisions do not apply to product data submittals or any submittals other than shop drawings and samples. In contrast, AIA A201’s provisions apply to shop drawings, product data, samples, “and similar submittals” although the meaning of “and similar submittals” may be unclear. Thus, it may be appropriate for design professionals to require, via their projects’ specifications Section 01 33 00 – Submittal Procedures, that the contractor must furnish written notice of all proposed deviations regardless of submittal type.
AIA A201 and EJCDC C-700 each require that proposed deviations be indicated both in the shop drawing or other relevant submittal, and in a separate, written “notice” to the design professional. In practice, the contractor’s submittal transmittal letter is usually the location of the “separate notice”, although this writer has never seen enforcement of a contract’s notice provisions relative to such submittals.
Furnishing the separate “notice” required by both AIA A201—2017 Section 3.12.8 and EJCDC C-700—2018 Paragraph 7.16.A.3 may not be routine on all construction projects, but it is very important, as discussed in the following section of this blog post. When the design professional or construction manager as advisor (CMa) becomes aware that a submittal includes deviations from the contract’s requirements and such deviations have not been clearly indicated in both the submittal and its associated transmittal letter, the submittal should be rejected and returned to the contractor as incomplete and non-compliant. Enforcement of such provisions is essential. By regularly enforcing such provisions, the design professional and CMa will have greater assurance that they have been properly advised of all proposed deviations presented in submittals.
Approving Submittals with Deviations
A common dilemma faced by design professionals is approval of a shop drawing, product data submittal, or sample that is later revealed to deviate from the contract’s requirements. Often, such deviations are revealed only after the item has been installed into the work. Both EJCDC C-700 Paragraphs 1.01.A.37 and 41 and AIA A201 Section 3.12.4 expressly state that submittals are not contract documents so, when non-compliance in the submittal is apparent after purchase and installation, can the design professional or CMa reasonably order the contractor to remedy the matter, without cost to the owner?
The answer probably depends on circumstances. Where the contractor complied with contractual requirements to clearly indicate the proposed deviation(s) in the submittal and in a separate written notice, and the design professional approved the submittal anyway, a court or arbitrator would likely side with the contractor and may deem unenforceable the design professional’s or CMa’s demand for a remedy at no cost to the owner.
However, when the contractor has not clearly indicated the proposed deviation and/or failed to give the required separate notice, there may be improved potential that a court or arbitrator would side with the owner and its design professional and enforce the contract’s provisions stating that submittals are not contract documents or change orders.
In deciding such matters, a court or arbitrator is likely to consider the extent to which the contract’s requirements were enforced throughout the project. If the owner, design professional, or CMa has previously played fast and loose with contractual enforcement and seeks enforcement only when convenient or when it suits them, a court or arbitrator may side with the contractor. Although most construction contracts, including the widely-used standard contracts of AIA and EJCDC, include provisions indicating that the owner’s failure to enforce a provision does not waive its right to enforce it later or other provisions, courts and arbitrators often consider the parties’ past actions on the project to identify a reasonable expectations of the personnel involved. Thus, routine, impartial enforcement of the construction contract benefits both parties and all project participants.
A cardinal purpose of submittal reviews is for the design professional to endeavor to determine if the submittal indicates compliance with the contract. Therefore, design professionals, CMa’s, and others reviewing submittals should always perform such reviews with appropriate care, diligence, and professional judgement, in accordance with the applicable standard of care. This was discussed more fully in this blog series’ third post, “Shop Drawings and Submittals: Liability Associated with Submittal Reviews”.
When a submittal is approved with deviations, it may be appropriate or necessary to issue an associated contract modification. Because most deviations proposed in submittals do not have an associated change in the contract price or contract times, often a design professional-issued field order or ASI is appropriate to formally approve the deviation.
For example, on one of this writer’s prior projects, electrical construction included providing a new transformer to step down incoming power to an existing building from 4160V to 480V. The electrical contractor proposed an “or-equal” transformer which was approved but required additional electrical conduits and cables between the existing 4160V switchgear and the new transformer, and between the new transformer and the new 480V motor control center. The approved “or-equal” transformer also required modifications to its anchors and supports on its associated secondary containment structure, which was constructed by the general contractor under a separate prime contract.
Accordingly, under the electrical contract, the engineer issued a field order to forestall any potential change in price or time for the required additional conduits, cables, and terminations, and, under the general contract, issued a separate field order regarding the transformer’s anchorages and supports. The work was completed without disagreements, perhaps because of the formal approval of the deviations via field orders, and because the field orders were issued promptly, concurrent with the engineer’s response on the transformer’s shop drawing and product data submittal.
This blog post has explored the common practice of shop drawings, product data submittals, and other submittals with proposed deviations from contractual requirements. Standard general conditions in widespread use in the United States require that such proposed deviations be expressly indicated in both the submittal itself and in a separate, written “notice”. Enforcement of such provisions is likely critical to the subsequent enforceability of the contract’s provisions that submittals, whether approved or not, are not change orders or other contract documents. To reduce the potential for disagreements later in construction, submittals approved with deviations may need an accompanying contract modification.
The forthcoming final post in this series will address 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 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.