During a construction project, owners typically receive a large amount of documentation from design professionals, contractors, and others involved with the project. One contractual requirement that is sometimes overlooked by contractors and design professionals is the submittal process.
What Are Submittals?
To understand the importance of submittals, we must first understand how they are defined. Submittals include shop drawings, product data, and samples. Section 3.12.1 of the AIA A201- 1997, General Conditions of the Contract for Construction, defines shop drawings as “drawings, diagrams, schedules, and other data specially prepared for the Work by the Contractor or Subcontractor, Sub-subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work.”
Product data includes catalog cut sheets, manufacturer’s installation instructions, manufacturer’s warranties, and other documents describing the construction products to be installed. Samples can range from submission of a half-inch pipe fitting connection to show the results of the connection method used to a full scale mock up of the exterior wall to demonstrate the expected architectural finish.
Contract Requirements and Submittals
The required submittals are detailed in the contract documents, usually within the individual specification section that applies to the particular portion of the work. Based upon the requirements in the contract documents, the contractor and its subcontractors and vendors will assemble the required submittals and present them to the architect for review.
Standard form contracts such as those published by the AIA and the EJCDC set up the same general requirement for the design professional to review the required submittals. For example, Section 2.6.11 of the AIA B141CMa, agreement between the owner and architect, requires the architect to “review and approve or take other appropriate action upon Contractors’ submittals […], but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents.”
The level of review required by the owner’s agreement with the architect frequently sets up different expectations between the parties. Some architects view the submittal review process as merely looking over the shoulder of the contractor who has the ultimate responsibility for making sure the work complies with the contract documents. Some owners view the submittal process as a final opportunity for the design professionals to verify the constructability of the design. The answer is somewhere in between.
Case Study No. 1
A design professional cannot avoid responsibility by arguing that it had no more responsibility in the submittal review process than to merely look over the shoulder of the contractor. This point is made well in Duncan v. MO Board for Architects, Professional Engineers and Land Surveyors (1988), 744 S.W.2d 524, a case from Missouri.
On a Friday in mid-July 1981, a party was held at the Hyatt Regency Hotel in Kansas City. While the party was underway and more than 1,500 people were in the lobby, the fourth and second floor walkways suddenly collapsed onto the floor below. As a result of the collapse, 114 people died and more than 186 were injured. At the time, it was the greatest loss of life in a single structural collapse in the United States.
The investigation into the collapse revealed that the connections on the fourth floor walkway failed. The second floor walkway was attached to the fourth floor walkway. The cause of the collapse was found in the shop drawings submitted by the contractor and reviewed by the design professional.
The overall structural design was prepared by a professional engineer engaged by the architect. Working under the engineer’s supervision was a project engineer who was in direct charge of the actual structural engineering work on the Hyatt Regency project. It was the project engineer, who was also a registered professional engineer, who actually reviewed the shop drawings in question.
The structural engineer originally designed the walkway structures for the fourth and second floors by using a “one rod” design. Six individual continuous rods, with three on each side of the walkways, extended from the fifth floor, down through the fourth floor walkway, and down again to the second floor walkway.
Under this design, each walkway received its support solely from the rods as the second floor walkway would not be supported in any way by the fourth floor walkway. The walkway connection consisted of a rod on each end of a box beam that extended across the underside of the walkway, supporting the walkway much like a trapeze swing supports a trapeze artist.
Due to fabrication problems, the steel fabricator proposed to use a “double rod” system to support the walkways. Under this design, six rods were connected from the fifth floor to the box beams under the fourth floor walkway. A second set of six rods attached to the same box beams under the fourth floor walkway and connected to the box beam under the second floor walkway.
This design effectively doubled the load on the fourth floor walkway box beam connections. The steel fabricator submitted the shop drawings with the double rod design and the original box beam connection design to the project engineer for review.
The shop drawings were reviewed by a technician employed by the structural engineer. The technician called the project engineer’s attention to the change from one rod to two rods. Without any further review of the shop drawings, the project engineer declared that the double rod system was basically the same as the one rod system.
Regrettably, this was not the case. The investigation revealed that the original box beam connection, when used with the double rod support system, was barely able to support its own weight. The addition of a large number of people onto the fourth floor walkway was more than the connection could support. The end result was that the professional engineering licenses of the structural engineer, the project engineer, and the consulting firm they worked for were all permanently revoked.
Why did the structural engineer lose his license when it was the project engineer who failed to properly review the shop drawings? A professional engineer is responsible for the plans he seals. Under the Missouri engineering licensing statues, which are similar to many other states, this responsibility is non-delegable. Therefore the structural engineer and the consulting firm were liable for the actions of employees and others upon whom the engineer relies.
The lesson learned from this case is that the design professional cannot ignore the submittal process and assume everything will work out. In the Hyatt case, during the shop drawing review the design professionals neglected to check the load bearing capacity of a critical connection that amounted to a design change and paid the price.
Case Study No. 2
Several jurisdictions have held that the approval of the shop drawings do not modify the Contract Documents. The following Virginia case highlights the pitfalls of assuming that the approval of the shop drawings modifies the Contract Documents.
Arlington County contracted to construct a bridge. The construction of the bridge included posttensioning of the structure. This process requires the contractor to mechanically pull the tendons in the structure to create the required tension in them.
According to the subcontractor who was to perform the post-tensioning, at least eight feet of space was required between the end of the bridge and the abutments for the bridge. Unfortunately, the county did not own a sufficient amount of land on the bridge site to allow for this required space.
The subcontractor proposed an alternative method for post-tensioning the structure by utilizing knock outs within the bridge to create the space necessary. The details of this method were submitted to the engineer and the county as a shop drawing. The engineer reviewed the document for conformance to the design concept. In turn the county stamped the shop drawings as “Accepted as Noted.”
As the Work progressed, it became apparent that this alternative method could not be utilized to post-tension the bridge structure because the temporary shoring used to support the bridge could not provide enough strength. When the contractor refused to continue construction until the county secured an easement from the adjacent land for the required space as well as providing additional funds, the county terminated the contractor.
In its suit to recover damages from the county, the contractor argued that the engineer and county’s approval of the shop drawings in essence changed the contract documents. In the case of D.C. McClain v. Arlington County (1995), 452 S.E.2d 659, the Virginia Supreme Court did not agree. The court held that the contractor was still required to build the bridge in compliance with the contract documents and any approval by the county of the shop drawings did not change this responsibility.
Timeliness of Review
Unlike the cases presented above, most disputes over submittals do not involve responsibility for the content of the shop drawings, but rather the timing of the submission and review. The contract documents are often vague on both counts.
Section 4.2.7 of the AIA A201-1997 provides that in the absence of a submittal schedule approved the architect, the review will be made “with reasonable promptness.” For the contractor, Section 3.12.5 provides that in the absence of a submittal schedule approved by the architect, the contractor is required to submit the shop drawings “with reasonable promptness.”
The contractor waiting for a five-page submittal to be reviewed and returned is likely to have a different definition of “reasonable promptness” than the design professional who in addition to the contractor’s five-page submittal is also reviewing more than 100 individual submittals. The key to resolving this conflict is to set the expectations up front.
Some contract documents require contractors to submit all required submittals within 10 days of the award of the contract. This approach ignores the fact that not all submittals are created equal. Instead of requiring all submittals within 10 days, consider requiring the contractor to submit a complete submittal schedule within 10 days of the award of the contract and hold the contractor to the schedule.
On the design professional side, consider setting firm review times requiring the return of the submittal within 10 days to two weeks. Further, think through the submittal process. Are there any submittals that are required by the contract documents that could be eliminated without impacting the quality of the project? Fewer submittals allows for additional time for contractors to prepare and design professionals to review each required submittal.
The submittal process can have a significant impact on the success of a project. As mentioned earlier, changes in design can sneak through the submittal process undetected and wreak havoc on a project. Careful attention by all parties involved in the submittal process can improve the chances of success for any given project. The process is not one that should be ignored.