This is the last in a six-part series of blog posts on shop drawings and submittals. Previous posts in the series addressed: (1) definition, purpose, and necessity of submittals; (2) the various types of submittals; (3) liability associated with submittal reviews; (4) submittal review stamps; and (5) submittals with deviations from contractual requirements.
Perhaps the least understood construction submittals are delegated design submittals. The myths and misconceptions surrounding delegated design submittals are many and varied. Hopefully, this blog post dispels some of them.
Delegated design is when a construction contract expressly assigns to the contractor responsibility for the final design (and construction) of a specific element of the completed, functioning project. In contrast, professional design of temporary construction and temporary facilities for the contractor’s construction means and methods is not delegated design. Delegated design requires the contractor, subcontractor, or supplier to retain a qualified, licensed, registered design professional (“delegated designer”) to prepare the final design of the subject element of the project based on performance and design criteria explicitly shown and indicated in the construction documents.
This blog post does not attempt to address delegated design in general. Rather, it is limited to the topic of delegated design submittals, especially their review and processing by the project’s architect, engineer, or geologist (“design professional”) who designed the overall project.
Two different designers (the design professional and the delegated designer) have their fingers in a delegated design, which increases the risk to the design professional unless they understand and comply with their contractual obligations and contractual limitations concerning submittal reviews. The project’s design professional has liability for the overall project as a completed, functioning whole and establishes the performance and design criteria the delegated design must satisfy. The delegated designer has liability for its own design, but not for the required performance and design criteria indicated in the construction contract documents. Delegated design submittals are where the rubber meets the road relative to ensuring a proper apportionment of liability between the design professional and delegated designer, who have no contractual relationship with each other.
Types of Delegated Design Submittals
The second post (“Shop Drawings and Submittals: Types of Submittals”) in this series presented recommendations for classifying certain delegated design submittals as “action submittals” and others as “informational submittals”. It recommended the delegated designer’s “instruments of service” submittals be “action submittals”.
“Instruments of service” submittals are to be sealed and signed by the delegated designer and may include: design reports, design drawings, design specifications, calculations, and certifications. Action submittals require an express approval by the design professional. As further discussed later in this blog post, the design professional’s approval of delegated design submittals this writer calls “instruments of service” is explicitly required by AIA A201—2017, Standard General Conditions of the Contract for Construction, and EJCDC C-700—2018, Standard General Conditions of the Construction Contract.
Other delegated design submittals, whether the delegated designer’s qualifications statement, or shop drawings, product data, samples, source and field quality control results, and others, should be informational submittals. The reason delegated design shop drawings (that are not sealed and signed by the delegated designer), product data, and samples should be informational submittals is because they should include the delegated designer’s own submittal approval stamp applied before they are furnished to the project’s design professional. As described in the third post (“Shop Drawings and Submittals: Liability Associated with Submittal Reviews”) in this series, typically only one architect, engineer, or geologist should approve a given submittal.
Locations of Contractual Requirements
Requirements for delegated designs are addressed in the construction documents as follows:
- General Conditions (EJCDC C-700—2018 Paragraphs 7.01.B and 7.19, and AIA A201—2017 Section 3.12.10). Regarding delegated design, A201 and C-700 are nearly identical and present basic risk allocations and responsibilities of the owner, contractor, design professional, and delegated designer.
- The drawings sealed and signed by the project’s design professional show the required layout and arrangement of the delegated design work and how it connects to existing construction and work designed by the design professional. Hence, the contract drawings are part of the performance and design criteria the delegated design must satisfy.
- Specifications Section 01 35 73 – Delegated Design Procedures, may be used to augment the General Conditions.
- Other performance and design criteria, and indication of the required submittals, are in the Division 02-49 specifications where the delegated design is required. These sections are sealed and signed by the project’s design professional.
Reviewing Delegated Design Action Submittals
Delegated design “instruments of service” submittals are, in accordance with AIA A201 and EJCDC C-700, to be expressly approved by the architect or engineer, for limited purposes, as described below.
The design professional’s risk associated with delegated designs is best managed by: (1) clearly and unambiguously indicating in the construction contract documents the performance and design criteria the delegated design must satisfy, and (2) the design professional’s limited review of delegated design submittals in accordance with the project’s construction contract. Concerning the latter, AIA A201—2017 expresses the limits of the architect’s review of delegated design submittals as:
- 184.108.40.206 … the Architect will review and approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given [in the Contract Documents] and the design concept expressed in the Contract Documents.
EJCDC C-700—2018 Paragraph 7.19.E is more-specific regarding the limits of the engineer’s review of delegated design submittals:
“E. …Engineer’s review, approval, and other determinations regarding design drawings, calculations, specifications, certifications, and other Submittals furnished by Contractor pursuant to an Owner-delegated design will be only for the following limited purposes:
“1. Checking for conformance with the requirements of this Paragraph 7.19;
“2. Confirming that Contractor (through its design professionals) has used the performance and design criteria specified in the Contract Documents; and
“3. Establishing that the design furnished by Contractor is consistent with the design concept expressed in the Contract Documents.”
Thus, in its review of the delegated design “instruments of service” action submittals, the design professional should avoid reviewing and commenting on anything not necessary to ascertain the limited purposes of the design professional’s review, as set forth in the General Conditions.
When reviewing delegated design “instruments of service” action submittals, the design professional should:
- Verify the submittals were appropriately sealed and signed by the delegated designer.
- Verify the delegated design satisfies the required performance and design criteria shown and indicated in the contract documents.
- Ensure the layout of the delegated design work is consistent with the contract drawings
- Evaluate the delegated design’s effect on other work designed by the project’s design professional. When the delegated design requires changes to the design of other elements of the project, the design professional should take appropriate action, including enforcing the contract’s requirements for substitutes.
When the above are satisfied, the design professional must issue a written approval of the submittal, although with special disclaimer language, as discussed below. When the design professional determines the submittal is not sufficient, based on its limited review, a written response to the contractor is necessary, indicating: (1) the disposition assigned, (2) clearly articulated comments, and (3) the limits of the submittal review via appropriate disclaimer language.
Design professionals should avoid the following in reviewing delegated design “instruments of service” action submittals:
- Evaluating and commenting on assumptions made by the delegated designer, unless such assumptions are expressly indicated in the construction contract.
- Reviewing and commenting on the delegated designer’s analytical approach or methodology, unless a specific approach or method is expressly required in the construction contract..
- Checking for math errors in calculations required by the construction contract.
- Checking anything beyond the limits of the design professional’s review, as indicated in the contract documents.
Presented later in this blog post are recommendations for design professionals who comment on delegated design submittals beyond the limited review required by the General Conditions.
As indicated in the fourth post (“Shop Drawings and Submittals: Submittal Review Stamps”), this writer recommends design professionals use submittal review stamps (or electronic facsimiles thereof) specific to delegated design submittals. This can be accomplished by using the action submittal dispositions recommended in the fourth post (i.e., “Approved”, “Approved as Noted”, “Revise and Resubmit”, and “Rejected”) and augmenting the disclaimer language recommended in the fourth post by adding the following:
[Engineer’s] review and approval of delegated design submittals is limited to performance and design criteria and review of general design concepts in accordance with the General Conditions [and Specifications Section 01 35 73 – Delegated Design Procedures].
Often, delegated design “instruments of service” design drawings and delegated design shop drawings are merged into a single submittal that bears the delegated designer’s seal and signature. Common examples are shop drawings for a building’s precast concrete wall panels and shop drawings for water utility storage tanks. Such submittals should be reviewed as delegated design “instruments of service” action submittals.
Reviewing Delegated Design Informational Submittals
Delegated design shop drawings (not bearing the delegated designer’s seal and signature), product data, samples, results of required quality control activities, and certain other delegated design submittals (that are not delegated design action submittals) required by the construction contract should be “informational submittals”. When delivered to the design professional for review, such submittals should bear the delegated designer’s submittal approval stamp.
To maintain clear lines of professional liability for such submittals, it is important for the design professional to recognize the reasons for requiring and receiving such submittals is typically for the project owner’s records and, perhaps, for authorities having jurisdiction, especially building code officials.
The design professional’s review of delegated design informational submittals is subject to the same limitations described above, as set forth in AIA A201—2017 Section 220.127.116.11 and EJCDC C-700—2018 Paragraph 7.19.E. The design professional’s review should also be limited because the delegated designer has already reviewed such submittals and stamped them “approved”. However, neither AIA A201 nor EJCDC C-700 directly addresses the limits of the design professional’s review of submittals that already bear the delegated designer’s approval stamp. Limits for such reviews may be explicitly indicated in either a project’s Supplementary Conditions or a Section 01 35 73 – Delegated Design Procedures. This writer recommends the following limited review of delegated design informational submittals bearing the delegated designer’s approval stamp: The design professional should:
- Verify the submittal was furnished as required;
- Verify the submittal generally appears complete; and
- Verify the submittal bears the delegated designer’s approval stamp; or, for the delegated designer’s reports of their visits to the site, that such report is legible and bears the delegated designer’s signature with date.
- The design professional should receive such submittals on behalf of the project owner, for the owner’s recordkeeping.
The design professional’s dispositions and obligation to respond in writing to informational submittals is addressed in the fourth post in this blog series. When a delegated design informational submittal is unacceptable, the design professional needs to so indicate to the contractor in writing, with clearly written reasons for non-acceptance. This writer recommends using the following disclaimer language for unacceptable delegated design informational submittals:
[Engineer’s] disposition on this Submittal is subject to these notes.
[Engineer’s] review and comment on Submittals approved, prepared, or sealed by delegated designer is for the limited purposes indicated in the Contract Documents. Specific limitations of [Engineer’s] review are indicated in the General Conditions and [Specifications Section 01 35 73 – Delegated Design Procedures].
[Engineer] is not responsible for the effects of resubmittals or tracking progress of resubmittals.
Certain other informational submittals may also be required relative to delegated designs, such as the delegated designer’s qualifications statement. Such submittals, when required, should be handled like normal, non-delegated design submittals. Design professionals should consider whether it is necessary to evaluate and accept a delegated designer’s qualifications, other than evidence of licensure and registration.
Going Beyond the Limits
Despite the very-limited nature of the design professional’s review of delegated design submittals, some design professionals occasionally note one or more apparent errors in the delegated design outside the scope of the design professional’s limited review. When the design professional is convinced of a bona-fide error or omission and believes it is of such gravity as to potentially endanger either the integrity of the completed project or the health, safety, or welfare of people or other property, there may be an ethical obligation to bring the matter to the contractor’s attention. This can be done using language such as:
While performing the [Engineer’s] limited review of the delegated design Submittal, [Engineer] observed what we believe may be an apparent error or omission in the delegated design, as follows:
Such comment(s) and [Engineer’s] observation of the apparent error or omission are rendered in good faith and do not, in any way, constitute: (1) [Engineer’s] review of all aspects of the delegated design, (2) any sharing by [Engineer] of any of delegated designer’s responsibilities or professional liability, (3) any responsibility imposed, in any way, on [Engineer] for any aspect of the delegated designer’s services or design, beyond the limited purposes of [Engineer’s] review as set forth in the Contract Documents.
As discussed in the second post (“Shop Drawings and Submittals: Types of Submittals”) in this series, submittals concerning the contractor’s means, methods, techniques, procedures, and sequences of construction are not desirable and may muddy the contractual waters for controlling the work. This applies to submittals, whether or not expressly required by contract, for construction means and methods that involve a contractor-hired professional engineer or professional geologist. Such submittals should not be required and, if furnished, should be returned to the contractor without review. Unlike delegated design submittals, such submittals have nothing to do with the final, completed project..
Processing delegated design submittals is among the most complicated and risk-prone activities a design professional undertakes during construction. It is critical that: (1) the construction documents expressly show and indicate the performance and design criteria the delegated design must satisfy and the required submittals; and (2) the design professional must comply with contractual limits on their review of delegated design submittals.
In their written submittal responses, it is advisable for design professionals to use disclaimer language specific to delegated design submittals. Unfortunately, the complex nature and liability concerns associated with delegated design submittals appear to necessitate multiple types of disclaimer language. Finally, architects, engineers, and geologists should be aware of and comply with their contractual obligations to review and take appropriate action on 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 this post does not constitute 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.