WHERE AN ARCHITECT or engineer is involved in a construction project, it is not unusual to find a contractual requirement that the contractor has to submit samples, shop drawings or other “submittals” to the designer for review before they can be ordered or installed. Many times, the contractors are surprised to learn later ¯ when they are told to tear items out and put different items in ¯ that the designer wasn’t exactly “approving” anything.
Let’s start by looking at the words of standard form contracts. The American Institute of Architects’ standard form general conditions (Document A201, 1997 Ed.) say that such submittals “are not contract documents.” Their purpose is to “demonstrate ... the way by which the contractor proposes to conform to the information given and the design expressed in the contract documents” (§ 3.12.4). The architect’s review of them does not relieve the contractor of any of its obligations (§ 4.2.7).
The AGC form language is similar. It says that the owner’s approval “does not relieve the contractor from responsibility for defective work resulting from errors or omissions of any kind on the approved shop drawings” (§ 3.13.3). In other words, this review is for the owner’s benefit, not the contractor’s, and no approval of anything can be used against the designer or owner (unless it is specifically pointed out as being different from the plans and specs, and specifically approved as such).
Without such language in your contract, “approval” of a submittal by an owner or designer could be found by a court to be an acceptance of what was on the submittal, letting the contractor and supplier off the hook if the owner/designer later didn’t like it. To protect themselves from legal exposure, many designers have become very, very careful about what words they use on their submittal reviews. Some still use the words “approved,” “approved as noted,” “revise and resubmit” and the like, but many now say instead “reviewed,” “reviewed with comments,” or take the inverse approach: “no exceptions taken” or “exceptions as noted.” They and their lawyers and/or insurers must feel that the use of such terms makes them less vulnerable to such claims.
A risk that upper tier mechanical subcontractors may be inadvertently creating for themselves comes where they pass such reviewed submittals back to their subs or suppliers and, in the process, tell them that the submittal was “approved” or “accepted” when, in fact, that isn’t exactly true.
In such cases, the sub or supplier might be able to come back later and say that, even if the owner/designer didn’t accept the deviating submittal, the general contractor did by leading the sub to believe that it was acceptable to the general. In fact, a widely used “transmittal” form has on it boxes to check to tell the recipient if the enclosed document has been “approved,” “approved as noted” or similar words.
I have seen contractors innocently and unknowingly get themselves in trouble by representing to the sub that the document was “approved” where the designer has really only said that he was “not taking exception” to it.
The safest route to take is: 1) to make sure that all suppliers know that any deviation from the plans and specs has to be specifically noted and specifically agreed to by the owner/designer, and 2) never to represent to a supplier that something was approved or accepted. Instead, just pass on the actual marked up or stamped document and let it speak for itself.
I know that there are suppliers who don’t want to specially manufacture or prefabricate an item unless and until they know for sure that it will be acceptable. They don’t like hearing that the architect has only “not taken exception.” They want a firm decision.
It may be that the contractor has to tell that supplier that the item is “approved” in order to get the supplier to deliver. If so, this is what we call a “business decision,” which the contractor is free to make. He just needs to be aware that he’s taking all possible liability on himself.
Susan McGreevy is a partner at Husch & Eppenberger, Kansas City, Mo., tel. 816/421-4800, e-mail to [email protected]