We get so used to terms of art in our professions that we sometimes fail to understand that others do not subscribe to the same definitions. “Field engineering” is one example. Does that term simply mean field routing or does it also imply some degree of design effort? Even the term “site” has been the subject of litigation where a designated lay down or staging area is not on the same parcel of land as the construction work itself.

“Shop drawings” fit into this same category of terms that everyone knows, but everyone knows in his own way. Does it mean or include general arrangement drawings, catalog cuts, P&IDs, manufacturing cut sheets, flow diagrams, engineering calculations? Do shop drawings merely fill in the installation details from the bid drawings or do they involve design components?

These questions can be of major proportions where work is performed in accordance with approved shop drawings, yet the end result is unacceptable to the owner or architect. For the purposes of this discussion, the 1997 version of AIA A201 is referenced. Compare these ideas with the exact language used in your -contracts. -

The nature of the submittal

A submittal includes “shop drawings, product data, samples and similar submittals.” (§3.12.6) By sending these papers to the architect, the contractor is, in fact, verifying “materials, field measurements and field construction criteria ... and has checked and coordinated” this data with the requirements of the contract. Id.

For conduit rerouting, for example, this clause appears to require that an electrical contractor make accommodations for duct work, the structural components of the building (beams, joists, etc.), and masonry wall penetrations. The data may also need to include the types of hangers to be used and whether the conduit needs protection given the intended use of the structure.

Types of approvals

Generally, there are three types of submittal/approval cycles in the AIA documents: 1.) without variation, 2.) with variations, and 3.) with design services included. Of course, each of these types, needs to be understood within the context of the whole set of terms and conditions. For example, under §3.2.1, the contractor is to notify the architect of “any errors, inconsistencies or omissions discovered.”

1. Without variations: The contractor is required to submit shop drawings that satisfy “the requirements of the Work and of the Contract Documents.” (§3.12.6) Action by the architect (approved, disapproved, approved as noted) should then be taken “with reasonable promptness ... as to cause no delay ... ” (§13.12.5). Although the shop drawings are approved, “the contractor shall not be relieved of responsibility for deviations from requirements of the contract documents. ... ” (§3.12.8).

This approval process is the more typical one and normally should cause no concern to the contractor. On the other hand, an approval is not much of a defense to a contractor whose work is subsequently rejected. The architect will argue that his review was for general compliance only.

Where the architect's review process is very detailed-and multiple submissions must be made by the contractor before approved-the “general compliance” argument is weakened but remains.

2. With variations: Often a contractor, whether intentionally or otherwise, modifies the contract-design requirements in his shop drawings. In one of my cases, the contractor threw in a safety mat not called for in the specifications, and in another case, the control panel supplier included additional software not called for in the contract. Contractors frequently submit equipment and devices in the shop drawings that differ from the specifications.

These modifications can cause a problem. In essence, the approval of the modified shop drawing does not apply to the deviation. You need a separate approval for the deviation. Performance of work without a fully approved shop drawing can lead to a directive to tear out the work (see §3.12.7).

For the approvals to have any meaning, the architect must be “specifically informed ... in writing” of any deviations. Your suppliers should be told of this requirement. The architect then has three options: 1) give written approval of the specific deviation as a “minor change” (no cost, no time), 2) authorize the deviation with a construction change directive or a change order, or 3) reject your submittal. Where either the contractor or the architect strays beyond these boundaries, the likelihood of confusion and disputes increases.

In either event, submittals without variation or with variations, the contractor is responsible for meeting the express requirements of the contract. In addition, the contractor is responsible for errors and omissions in its submittals.

3. With design services: This area of the contract contains some blurry distinctions. Generally, the architect designs and the contractor builds. The AIA A201 document in a number of clauses makes it clear that the contractor is not the designer. The contractor is not required to review the drawings for design errors. But if the contractor discovers design errors, he must report them.

Realistically, all shop drawings require some design interpretation. Applying the National Electrical Code is a prime example.

Section 3.12.10 continues this design versus build separation, while also continuing the blurry lines. Consider this provision:

The contractor shall not be required to provide professional services which constitute the practice of architect or engineering. ...

This quoted language seems clear enough, but the clause continues:

- unless such services are specifically required by the Contract Documents

or

- unless the contractor needs to provide such services in order to carry out the contractor's responsibilities.

Does the exception swallow the rule? I am not aware of any court decisions which have clarified the contractor's responsibility under these “unless” provisions.

“Specifically required” is somewhat limited in definition. There are instances where the owner and architect “specify all performance and design criteria.” In other words, a part of the contract may be design-build. The “needs to provide” part remains elusive.

What we do know is that “design services” are ones “provided by a properly licensed design professional whose signature and seal shall appear” on the shop drawings. Under these circumstances, project design responsibility seems to shift to the contractor.

The AIA language is somewhat unusual. “The Owner and Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the service, certifications or approvals performed by such design professionals. ... ”

The architect's approval is “only for the limited purpose of checking for conformance with information given and design concept expressed in the Contract Documents.”

Conclusion

No one part of any construction contract can be understood fully without an understanding of related provisions. The submittal process is a prime example. That process implicates time extension and change order clauses and it must be read in light of the overall scope of work.

The best approach is to make no assumptions. Read carefully what your obligations are for shop drawing approvals and monitor how the architect treats your submittals. EC

ITTIG, of Ittig & Ittig, P.C., in Washington, D.C., specializes in construction law. He can be contacted at 202.387.5508, USBuildlaw@aol.com or www.ittig-ittig.com.