This is the conclusion of a three-part series on construction progress schedules. The first part addressed schedule terminology, locations of schedule requirements in the construction documents, and the contractor’s responsibilities for construction progress schedules. The second part addressed the basics of review. This third and final installment covers the timeliness of submittal reviews
How long does it take your firm to review and respond to contractors’ construction submittals? While many design professionals and construction managers as advisor (CMa) endeavor to respond promptly, it is also quite common for submittal review and response times to be inordinately long.
Overlong Times for Submittal Responses
This writer has seen some design professional teams with documented records of 42 or more days, average, to respond to contractors’ submittals, which is grossly excessive. This writer has personally observed many design professional teams with an average response time of 28 days: concrete cures faster. Such response times virtually invite contractor delay claims. As discussed in a prior post on this blog (“Delays in Construction: A Common Source of Claims”), delays in the construction resulting from the action or inaction of the owner’s consultants (i.e., design professional, construction manager as advisor (CMa), and program manager) are typically deemed delays within the owner’s control, for which the contractor is due additional time and compensation. It is decidedly unpleasant to have to tell the owner, “I caused the contractor’s delay claim.” Some owners may expect their consultant to reimburse the cost of such claims, regardless of the typical standard of care.
The design professional’s and CMa’s time to process, review, and respond to contractor submittals required by the construction contract is not unlimited. Virtually all construction contracts include:
- a clause setting forth the required contract times by which the work is to be completed;
- a clause asserting that “time is of the essence” with respect to compliance with the contract times; and
- liquidated or other damages for late completion.
Thus, the contractor certainly cannot wait for weeks on end for submittal responses delivered only when convenient for the architect, engineer, or CMa.
As discussed in prior posts on this blog, including “Liquidated Damages: Compensation for Late Completion”, “Contractor Incentives: The Carrot vs. the Stick”, and others, there can be serious consequences when the contractor does not comply with the contract times. Therefore, a contractor is virtually powerless to do anything except submit a delay claim when the actions of an owner’s consultant have adversely affected the contractor’s ability to comply with the contract times.
How long should a design professional’s or CMa’s review of contractors’ submittals take? One answer does not fit all situations and many factors affect this, including:
- The submittal’s size and complexity.
- Whether multi-disciplinary reviews are necessary.
- The number of separate entities contributing to the review, such as a prime consultant, subconsultant, and perhaps even comments from an owner’s employee. Comments from multiple sources must be collected and harmonized into a single set of comments, which takes time.
- Availability of resources that facilitate collaboration, such as online document management systems and software that allows multiple team members to work simultaneously on the same document.
- Other, concurrent demands on the reviewers’ time and resources.
- Personnel schedules, including holidays and personal time off.
- Demands of other projects.
Except for the final item listed above, all the above factors can be effectively managed at the project level to establish appropriate review and response times for contractor submittals. The recommended approach is presented later in this blog post.
Some construction contracts establish a stipulated number of days within which submittal responses are due; for example: “Architect shall furnish its response to each submittal within 21 days of Architect’s receipt thereof.” While this is a simple approach that provides all involved entities with complete certainty, it also may be a disservice both to the contractor’s team and the owner’s consultants.
Such contract clauses guaranteeing a submittal response within a stipulated time bind the owner’s consultants to the indicated time limit regardless of the submittal’s size and complexity, and regardless of the quantity of other submittals furnished concurrently. To illustrate, one of this writer’s mentors has repeatedly recounted how, on a large, complex project in the 1970s, the contractor delivered to the engineer’s office a truckload of approximately 1,000 submittals on a Friday afternoon and, before driving off, called out, “I’ll be back to pick up your responses to all these on Monday morning.”
The contractor may not be well-served by stipulating guaranteed time limits for submittal responses, because the owner’s consultants may view the stipulated time limit as something of an entitlement, even for short, simple submittals that can be processed relatively quickly, thus possibly requiring 21 days for a response that might ordinarily take only, say, two or three days.
“Schedules of Submittals”
The approach taken by the American Institute of Architects (AIA) and Engineers Joint Contract Documents Committee (EJCDC) is reasonable and fair to both the contractor and the owner’s consultants. It requires, at the outset of the project’s construction stage, development of a “schedule of submittals” (EJCDC term) or “submittal schedule” (AIA term), to be mutually agreeable to the contractor and design professional.
The schedule of submittals is to indicate all the submittals required by the construction contract, when they will be delivered to the design professional, and the duration allowed for the design professional’s review. When accepted by the design professional, the schedule of submittals establishes not only when each submittal will be furnished to the design professional, but how long is allowed to respond to the contractor.
The schedule of submittals must, of course, be closely coordinated with the contractor’s construction progress schedule. The stipulated contract times should include, among other things, the time reasonably necessary for the contractor’s establishment of effective subcontracts and purchase orders and preparation of submittals (see, “Stipulated Contract Times: Determination Requires Due Diligence”, previously posted on this blog). Like the construction progress schedule, the schedule of submittals must be periodically updated throughout the construction stage.
An excerpt from a project’s schedule of submittals is presented below:
Standard General Conditions’ Requirements
AIA A201—2017, Standard General Conditions of the Contract for Construction, includes the following regarding submittal schedules:
“§ 3.10.2 The Contractor, promptly after being awarded the Contract and thereafter as necessary to maintain a current submittal schedule, shall submit a submittal schedule for the Architect’s approval. The Architect’s approval shall not be unreasonably delayed or withheld. The submittal schedule shall (1) be coordinated with the Contractor’s construction schedule, and (2) allow the Architect reasonable time to review submittals. If the Contractor fails to submit a submittal schedule, or fails to provide submittals in accordance with the approved submittal schedule, the Contractor shall not be entitled to any increase in Contract Sum or extension of Contract Time based on the time required for review of submittals.
“§ 3.12.5 The Contractor shall… submit to the Architect, Shop Drawings, Product Data, Samples, and similar submittals required by the Contract Documents, in accordance with the submittal schedule approved by the Architect or, in the absence of an approved submittal schedule, with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of Separate Contractors.
“§ 4.2.7 The Architect will review and approve, or take other appropriate action upon, the Contractor’s submittals such as Shop Drawings, Product Data, and Samples…. The Architect’s action will be taken in accordance with the submittal schedule approved by the Architect or, in the absence of an approved submittal schedule, with reasonable promptness while allowing sufficient time in the Architect’s professional judgment to permit adequate review…”
AIA A503—2017/2019, Guide to Supplementary Conditions, implies the owner and architect may desire to establish a minimum required duration for the architect’s review of submittals, and presents suggested, model language.
Similar to AIA A201, EJCDC C-700—2018, Standard General Conditions of the Construction Contract, requires:
“[1.01.A]35. Schedule of Submittals—A schedule, prepared and maintained by Contractor, of required submittals and the time requirements for Engineer’s review of the submittals.
“[2.03]A. Preliminary Schedules: Within 10 days after the Effective Date of the Contract (or as otherwise required by the Contract Documents), Contractor shall submit to Engineer for timely review:
“2. a preliminary Schedule of Submittals; and …
“2.05 Acceptance of Schedules
“A. At least 10 days before submission of the first Application for Payment a conference, attended by Contractor, Engineer, and others as appropriate, will be held to review the schedules submitted in accordance with Paragraph 2.03.A. No progress payment will be made to Contractor until acceptable schedules are submitted to Engineer.
“2. Contractor’s Schedule of Submittals will be acceptable to Engineer if it provides a -workable arrangement for reviewing and processing the required submittals.
“[7.16]B. Submittal Procedures for Shop Drawings and Samples: Contractor shall label and submit Shop Drawings and Samples to Engineer for review and approval in accordance with the accepted Schedule of Submittals.
“[7.16.C]1. Engineer will provide timely review of Shop Drawings and Samples in accordance with the accepted Schedule of Submittals….”
Unlike AIA A201, EJCDC C-700 Paragraph 2.05.A makes furnishing a schedule of submittals acceptable to the engineer a condition for the contractor’s eligibility for the first progress payment. However, unlike EJCDC C-700, AIA A201 Section 3.10.2 expressly stipulates, when the contractor fails to comply with the submittal schedule approved by the architect, the contractor forfeits entitlement to additional contract time and additional compensation relative to delayed submittal reviews. Both C-700 Paragraph 2.05.A and A201 Section 3.10.2 are powerful inducements for the contractor to furnish and comply with its schedule of submittals.
Additional Requirements for Schedules of Submittals
Additional detailed requirements for the schedule of submittals may be set forth in the specifications, in Section 01 33 00 – Submittal Procedures. This writer has used the following language (written to coordinate with EJCDC C-700—2018):
1.# SCHEDULE OF SUBMITTALS
A. Informational Submittals: Submit the following:
1. Schedule of Submittals:
1) Furnish Schedule of Submittals within time frames indicated in the General Conditions, as may be modified by the Supplementary Conditions.
2) Submit updated Schedule of Submittals with each submittal of the updated Progress Schedule.
b. Content: In accordance with the General Conditions, as may be modified by the Supplementary Conditions, and this Section. Requirements for content of preliminary Schedule of Submittals and subsequent Submittals of the Schedule of Submittals are identical. Identify on Schedule of Submittals all Submittals required in the Contract Documents. Updates of Schedule of Submittals shall show scheduled dates and actual dates for completed tasks. Clearly indicate Submittals that are on the Project’s critical path. Indicate the following for each Submittal:
1) Date by which Submittal will be received by Engineer.
2) Whether Submittal will be for a substitution or “or-equal”.
3) Date by which Engineer’s response is required. Allow not less than 14 days for Engineer’s review, starting on Engineer’s actual receipt of each Submittal. Allow increased time for large or complex Submittals.
4) For Submittals for materials or equipment, date by which material or equipment must be at the Site to avoid delaying the Work and to avoid delaying the work of others (if any).
c. Prepare Schedule of Submittals using same software, and in same format, specified for Progress Schedules in Section 01 32 16 - Construction Progress Schedule.
d. Coordinate Schedule of Submittals with the Progress Schedule.
e. Schedule of Submittals that is not compatible with the Progress Schedule, or that does not indicate Submittals on the Project’s critical path, or that places extraordinary demands on Engineer for time and resources, is unacceptable. Do not include Submittals not required by the Contract Documents.
f. In preparing Schedule of Submittals:
1) Considering the nature and complexity of each Submittal, allow sufficient time for reviews and revisions.
2) Allow reasonable time for: Engineer’s review and processing of Submittals, for Submittals to be revised and resubmitted, and for returning Submittals to Contractor.
3) Identify and accordingly schedule Submittals that are expected to have long anticipated review times.
Construction Stage Considerations
Once a mutually acceptable schedule of submittals is established, the contractor, design professional, and CMa all need to honor their commitments therein, by allocating appropriate resources and making submittal processing a priority.
When either the contractor or one or more of the owner’s consultants does not comply with its commitments under the accepted schedule of submittals, the opposing party should advise the errant entity in writing and request their compliance with the accepted schedule of submittals. Such communications should be professional, evenhanded, succinct, and non-judgmental in tone. For further guidance, refer to “Liquidated Damages: Enforcing Damages for Late Completion”, previously published on this blog.
Whether the design professional or CMa complied with the review times in the accepted schedule of submittals is usually fully documented, because virtually all submittal logs, whether tracked automatically and electronically, or manually, indicate the dates on which the design professional or CMa received each submittal, and the date on which the response to the submittal was transmitted to the contractor.
During construction, it is very important for the design professional and CMa to heed and comply with their obligations in the accepted schedule of submittals. Failure to do so may be grounds for a contractor’s delay claim, especially when the work associated with the submittal is on the project’s critical path.
Because compliance with the construction contract times is of the essence of virtually all construction contracts, it is an essential obligation of all entities involved, including the owner’s consultants, such as the design professional and CMa, to do all in their power, within the limits of their contractual responsibilities, to ensure that the construction is not delayed. Because many projects require a large number of contractor-furnished submittals, to reduce the potential for contractor delay claims, it is very important for design professionals and CMa’s to require, comply with, and enforce compliance with a schedule of 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 article constitutes legal advice. Readers in need of such advice should consult with a qualified, experienced attorney.
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.