September 22, 2015
The submission of shop drawings, manufacturer date sheets and samples is an important part of the construction process that is often given insufficient attention in construction contracts. There is a tension between the Owner, Architect and the Contractor in how submittals are handled, and the reliance that can be placed upon them. Architects typically do not want to add additional responsibility for means and methods that are part of the Contractor’s responsibility. Owner’s would like to have the party responsible for the design make determinations of how the submittals comply with the Architect’s design intent, and to ensure they are getting the project that meets their needs. Contractors are interested in trying to ensure that the work they undertake is consistent with the plans and specifications, and to get as much direction as possible, thereby reducing their risk. This entire process must also be viewed in light of the project schedule. If timely submissions are not made by the Contractor, the review cannot be completed in a timely fashion, and this may cause delays that will be the responsibility of the Contractor. On the other hand, if the Architect or Owner does not timely review and respond to the Contractor’s submittals, the Contractor’s work may be delayed resulting in additional costs to the Owner. The A201 addresses some of these issues, while more specificity may be set out in other AIA agreements between the parties.
The primary portion of the A201 dealing with submittals is Article 3.12. §3.12.4 specifies that “Shop Drawings, Product Date, Samples and similar submittals are not Contract Documents.” The submittals are to show how the Contractor proposes to actually construct portions of the design. This has important ramifications. Since the submittals are not Contract Documents, the submittals cannot vary the terms of the Contract Documents, including the Plans and Specifications. §3.12.8 specifically provides that the Contractor is not relieved of its
responsibility to perform according to the Contract Documents, even if the submittal is approved by the Architect, unless the deviation was a minor change, or unless there was a change order authorizing the deviation.
The initial burden is on the Contractor. The Contractor is to review the Contract Documents and provide the Submittals to the Architect in accordance with the submittal schedule approved by the Architect or, if there is no schedule, “with reasonable promptness” to avoid delays. The Contractor is also making a representation to the Owner and Architect that its submittals have been reviewed, that all field measurements have been determined, and that the submittal is consistent with the Contract Documents2. Once the Contractor has made the submittal, A201, §3.12.7 requires the Contractor to wait for approval before beginning any work associated with the submittal.
The Architect’s role in the submittal process is set out in A201, §4.2.7. The Architect will review the Contractor’s submittals in accordance with the Architect approved submittal schedule, or with reasonable promptness. In what should not be a surprise to anyone, §4.2.7 also limits the duties of the Architect. The Architect’s review obligations are limited to “checking for conformance with information given and the design concepts expressed in the Contract Documents.” §4.2.7 also provides that the Architect’s review is not conducted to determine the
accuracy, details, quantities, or to provide approval of installation or performance, all of which are the Contractor’s responsibility. Even with respect to the timeliness of the Architect’s review, the reasonable promptness is limited to allow additional time if it is necessary “in the Architect’s professional judgment to permit adequate review.”
In the A201, the Owner’s role is really anticipated to occur through the Architect. However, the Owner still has responsibility to ensure that information necessary to the Contractor is provided. In A201, §2.2.4, the Owner is required to provide “information or services required of the Owner by the Contract Documents with reasonable promptness.” The Owner is also required to provide information under the Owner’s control, which would necessarily include the Architect’s services.
When negotiating an A201, the parties should attempt to further define an appropriate deadline for the submittal schedule. The “reasonable promptness” language in the A201 is vague and open to differing interpretations, and should be refined where possible.
2 A201, §3.12.6.