Are submittals contract documents?

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Author Message Brett M. Wilbur CSI, CCS, AIA Senior Member Username: brett Post Number: 197 Registered: 12-2004 Posted on Tuesday, September 28, 2010 - 01:12 pm:    I appoligize if this topic has been beaten to death, but let's do it again. I have a situation where our drawings and specs required the HVAC duct system to conform to SMACNA details. When we recieved the shop drawings, the elbow transition was not designed per the SMACNA requirements. This was inadvertently overlooked and approved by the A/E during the submittal process. It was subsequently built incorrectly according to SMACNA but we did not notice this until site observation. Now, my understanding is that submittals are NOT contract documents and that the contractor is still obligated to conform to the plans and specs regardless of what is approved on the submittal? Is this correct? Does anyone have this explanation in writing, or know where I can get it, so that I can provide to the contractor for information? (Unregistered Guest) Unregistered guest Posted on Tuesday, September 28, 2010 - 02:40 pm:    Depends on the General Conditions used for the project. If AIA A201-2007, it is in 4.2.7. Similar location in earlier editions. Bob Johnson Phil Kabza Senior Member Username: phil_kabza Post Number: 457 Registered: 12-2002 Posted on Tuesday, September 28, 2010 - 10:23 pm:    So many architects believe that they owe a duty to the contractor when they review submittals. They do not, unless they're using a contract written by a contractor's organization. Architects work for the owner. Their review is performed on the owner's behalf. So is their rejection of defective work. Exception: the designer in a design-build entity. John Bunzick, CCS, CCCA, LEED AP Senior Member Username: bunzick Post Number: 1241 Registered: 03-2002 Posted on Wednesday, September 29, 2010 - 08:42 am:    Unfortunately, while you are in the right in that contract requirements were not met, this is one of the most difficult arguments to be made during CA (having done it myself). Expect MAJOR pushback, and possibly litigation. This is one of the reasons I like to get as few submittals as we can for purposes of quality control and assurance, although sheet metal shop drawings would be one I would typically want. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 1020 Registered: 07-2002 Posted on Wednesday, September 29, 2010 - 11:52 am:    I agree with John and Phil on this; the shop drawings and other submittals are not contract documents (unless someone rewrote the general conditions and the contract) but once the thing is installed, there will be almost no incentive for the contractor to redo the work. And John is right -- there will be major push-back. The real issue from your (and the owner) standpoint is would the in-place assembly function the same way as the SMACNA assembly?, and I would propose having someone from SMACNA (if possible) and your mechanical engineer review what was built to see if it meets performance criteria. (that's the point of following SMACNA details -- predictable performance ); and going with their judgment. And for the long term - don't request submittals you aren't going to fully review vis a vis the specs, which means that the 22 year olds probably shouldn't be doing that job. George A. Everding, AIA, CSI, CCS, CCCA Senior Member Username: geverding Post Number: 620 Registered: 11-2004 Posted on Monday, March 05, 2012 - 02:51 pm:    Of course I am firmly on the side of Submittals are NOT Contract Documents, but what about this… Language from a manufacturer’s guide spec Part 3 often says something like: “Install product in accordance with approved shop drawings.” The harried specifier slips this into the contract documents – now what? Has he or she inadvertently made the shop drawings for this spec section a contract document? Is there a difference between this situation and reference to an industry standard? “Install according to ASTM xxxx” makes that referenced standard as much a part of the contract as if written out in the spec in full… Thoughts? George A. Everding AIA CSI CCS CCCA Ingersoll Rand Security Technologies St. Louis, MO Nathan Woods, CSI, CCCA, LEED AP Senior Member Username: nwoods Post Number: 422 Registered: 08-2005 Posted on Monday, March 05, 2012 - 02:57 pm:    In response to George: Generally, I think the "install per approved shop drawings..." is similar or akin to saying install per mfr's requirements. I see no conflict between these statements and what is actually in the contract documents. We typically will always want something installed in a way that the mfr would agree with, so while the shop drawings are not contract documents, they do support what I consider our intent as expressed in the contract documents, which is to install things properly, in a fashion suitable and elegible for mfr's warranty, in general conformance to the contract documents, which show What, Where, and to what Quality, but typically not How. I don't see any conflict. Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 459 Registered: 10-2007 Posted on Monday, March 05, 2012 - 07:53 pm:    The classic concern about approving submittals as opposed to reviewing submittals is what are the consequences if the submittal is not consistent with the contract documents. My understanding is that by "approving" the submittal you are stating that the contractor complies with the contract documents. If it is later found out that the submittal does not conform to the contract documents the contractor may not have to fix the problem on his dollar. This also creates a possibility that the design professional will be asked to pay for the repairs because his failure to catch the problem resulted in the owner having to pay the cost. Nathan Woods, CSI, CCCA, LEED AP Senior Member Username: nwoods Post Number: 423 Registered: 08-2005 Posted on Monday, March 05, 2012 - 08:40 pm:    Mark, you need a better attorney. This is explicitly what the A201 says is NOT the case. 4.2.7: “The Architect will review and approve or take other appropriate action upon the Contractor’s submittals . . . but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents . . . 4.2.7: “ . . . Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities . . . all of which remain the responsibility of the Contractor . . . ” 3.12.8: “The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or similar submittals . . . ” Here is a good article I just found via Google http://info.aia.org/aiarchitect/thisweek06/0512/0512bp_risk.cfm Ronald L. Geren, AIA, CSI, CCS, CCCA, SCIP Senior Member Username: specman Post Number: 992 Registered: 03-2003 Posted on Monday, March 05, 2012 - 09:00 pm:    From the article Nathan mentioned: "For example, MASTERSPEC® division 1330 tracks A201 and offers specifics for submittal procedures" With as much information they present on submittals, they couldn't properly reference a specification section: "division 1330"? Really... Although MasterFormat had been around for two years when the article appeared, I won't beat them up for using the 5-digit format (I think they were using the 5-digit format). Ron Geren, AIA, CSI, CCS, CCCA, SCIP www.specsandcodes.com Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 460 Registered: 10-2007 Posted on Tuesday, March 06, 2012 - 01:12 am:    It appears that AIA A201 effectively redefines the word approved. And while this should be possible this will only work for projects that do not use A201, if the general conditions have similar language. In many cases consultants are never given the opportunity to review the general conditions before they are issued. Ellis C. Whitby, PE, CSI, AIA, LEED® AP Senior Member Username: ecwhitby Post Number: 137 Registered: 03-2003 Posted on Tuesday, March 06, 2012 - 07:48 am:    Nathan; While I agree that what A201 states is the ideal, in my experience all too many Owners cave when the Contractor says that the AE “approved” a submittal. I have experienced several instances where the Contractor’s submittal deviated from the CDs and even though the submittal did NOT highlight the deviation (as explicitly called for in the front end), the “fact” that the AE “approved” the submittal was all that the Owner heard. Long and tedious discussions on necessary corrections inevitably ensued. Life is so much easier with knowledgeable Owners. Marc C Chavez Senior Member Username: mchavez Post Number: 443 Registered: 07-2002 Posted on Tuesday, March 06, 2012 - 11:21 am:    I can top that I've recently had a contractor submit completely different products (TPO vs Mod. Bit) no substitution form and a half assed submittal and the young architect when rejecting it was told he was not a "team player." we can go down the war story path all day. stupid owners included. we have many contracts that are NOT the AIA documents. and while the AIA docs have been thru the ringer several times, the contracts written by many city or private owners you're using may not be. so much for that nice language stating that the submittals are not contract documents. However as the AIA docs are so long in the tooth - I bet the meaning of the language - the essence of it ... as it pertains to our behavior as professionals... is in many ways the "standard of practice" There was a dicsussion some time ago about dealing away with submittal stamps. They are a VERY thin vail to hide behind and what about IPD? where we stop drawing early and the "shops" ARE contract documents 'cause the whole "team" is in it together... Oh well. for this discussion submittals are NOT contract documents if you are using an AIA contract and GC's However for your next non-AIA contract, look deeper than the indemnification and subrogation paragraphs and make sure that if the stuff hits the fan over a submittal - you have added or modified your contract language (god knows what they signed with the contractor) to make it clear what your duty to the project is and what you'll take liability for. I work for a large firm, and I have to have every contract (none of mine in the past two years have been AIA) run past the insurance company, in-house and ex-house attorneys prior to signing.... and even then I'm not sure they catch everythng....I know I don't, but I keep trying. M