| Author |
Message |
David Axt, AIA, CCS, CSI
Senior Member
Username: David_axt
Post Number: 134
Registered: 03-2002
| | Posted on Friday, June 13, 2003 - 01:54 pm: |    |
There is a big debate in our office concerning the use of the word "approved" vs. "reviewed" on our shop drawing stamp and in our specs.
Any thoughts? |
Jim Brittell, AIA, CSI (Unregistered Guest)
Unregistered guest
| | Posted on Friday, June 13, 2003 - 02:13 pm: | |
My understanding is that whether you review it or approve it, you are still liable for it. If it is a submittal that has not been requested, it should be returned "not reviewed". Your E&O insurance carrier can provide more definitive help, I'm sure. |
Joe Back (Unregistered Guest)
Unregistered guest
| | Posted on Friday, June 13, 2003 - 04:26 pm: | |
I have always been concerned that we (design professionals, specifiers)look ridiculous to others in the industry when we argue about whether we have "reviewed" or "approved" something. There can be no doubt that contractors (and their attorneys) feel quite confident that we have "approved" a submittal when we return it with a stamp that says "reviewed," or "no exceptions taken." Various magazine articles and seminars have indicated to me that judges and jurors often take a dim view of design professionals trying to argue that they are somehow less responsible because they only "reviewed" it and did not reject it, but also did not "approve" it. What message are we trying to send?
Nevertheless, I have had many discussions about this very topic with my attorney. He has not wavered in telling me to NEVER use the word "approved" with regard to some action that I am taking on a submittal. "Reviewed" is his preferred word. I still feel odd about this, but I follow my attorney's advice. |
Dennis Hall (Unregistered Guest)
Unregistered guest
| | Posted on Friday, June 13, 2003 - 05:30 pm: | |
Jim is correct. The AIA General Conditions, state that "the Architect will review and approve or take other appropriate action upon the Contractor's sbbmittals..."
This implies if you review a submittal and don't disaprove it or take some other appropriate action, the submittal may be considered approved. Reviewing only is not an appropriate action unless it is a submittal for information such as a test report or maintainence data which is received of information only. |
John Regener, AIA, CCS, CCCA, CSI, SCIP
Senior Member
Username: John_regener
Post Number: 87
Registered: 04-2002
| | Posted on Saturday, June 14, 2003 - 02:45 am: | |
Because there is so much concern over this "approved" vs "reviewed" issue ... and one loss prevention consultant to a major E&O carrier teaches in their seminar that if you touch it, you are responsible for it whether you "review" or "approve" it ... submittals that are not required by the contract documents should be returned with the notation "Not Reviewed." |
David R. Combs, CCCA (Unregistered Guest)
Unregistered guest
| | Posted on Saturday, June 14, 2003 - 01:36 pm: | |
See also Andrew Civitello's book "Contractor's Guide to Change Orders."
The auther suggests - and presents a very good case - that when a contractor receives a "reviewed" submittal, as opposed to "approved" as required by the General Conditions, to immediately write a letter to the Owner (i.e. file a claim) pointing out that the architect is in breech of contract, subsequently delaying the project. Remember, the contractor is expressly prohibited by the same General Conditions to proceed with work where a submittal is required, until that submittal has been approved (see AIA A-201, 3.12.7). The author further states that the contractor needs to point out that the delay is a compensable one (which it is, due to the architect's inaction), and that it will be ongoing until an APPROVED submittal has been received.
I seriously doubt any owner who receives such a letter will side with an architect's attorney who so strongly recommended the use of the word "reviewed" in the first place. Keep in mind that the architect's approval is a strictly limited and conditional one (per the Owner-Architect Agreement and the General Conditions), not a wholesale one that the attorney might be assuming.
It would be prudent for ALL architects and their attorneys to assume that every contractor has read this book, and they are completely aware of this provision. For an architect to broadcast their non-compliance with the General Conditions by using the word "reviewed" instead of "approved" sends the message to a jury of lay people (in the event of litigation) that the architect is so obviously trying to weasel out of their responsibility, surely they must be trying to hide something.
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John Bunzick, CCS, CCCA
Senior Member
Username: Bunzick
Post Number: 104
Registered: 03-2002
| | Posted on Monday, June 16, 2003 - 08:49 am: | |
I believe that the issue is completely driven by the professional liablity insurers, who have driven this point home repeatedly. As to whether it really reduces a designer's liability, I too am skeptical - but I'm not an attorney. Anecdotally, I've been told that the word approved has been interpreted by juries to imply a greater degree of responsibility than it contractually means - i.e. they think it means we've done testing and exhaustive investigation.
We have changed our submittal stamp on the advice of our insurance carrier, but our Division 1 clearly states exactly what the stamp will say and what it will mean. David Combs suggestions would be a sure way to get the project team off in a contentious and mis-trusting way. Imagine that I wrote such a letter to a contractor who failed to include the proper stamp on their review - telling them that they were in breach and delaying the project - all hell would break loose! However, I would return it and ask them to comply with the requirements. Also, the "approval" process in the contract does not say that the architect must use the word "approved" on their stamp. It could be construed that the stamp, regardless of the language on it, effectively "approves" the submittal.
And this brings us back to the whole point of this post to begin with - what's it really mean? If the attorneys are telling us to use that word, I have no reason to ignore their advice, as it will have no impact on the design or construction process.
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Joe Back, AIA, CSI, CCS (Unregistered Guest)
Unregistered guest
| | Posted on Monday, June 16, 2003 - 11:49 am: | |
Okay folks, let me clarify something. Please be assured that when our firm uses "reviewed" with regard to action on a submittal review, we are careful to modify the General Conditions (whether AIA or other) by means of Supplementary Conditions to indicate that "reviewed" will be the word used. So, I don't think we are exposing ourselves to a delay claim simply by using that word.
Mr. Bunzick is correct in his explanation of the reason some, possibly many, attorneys representing design professionals recommend the word "reviewed." As I said in my first post, I continue to feel strange about playing the semantics game, but my very experienced attorney assures me that he has argued this point in court numerous times. He prefers, if possible, to try to convince the judge, jury, arbitrator, etc., that the design professional's review of an item of information from the contractor does not relieve the contractor of all responsibility for that information. Most contractors would like to believe that it does, and the judge, jury, or arbitrator not experienced in the design/construction industry might be swayed as well. Apparently, the word "approved" implies an absolute confirmation that the word "reviewed" does not. Remember, though, that the design professional is supposed to be judged by whether that professional performed services, including submittal review, in accordance with the standard of care. Missing an error or omission in a contractor submittal is not automatically a liability that transfers to the design professional, but you can be sure that it will be argued that way in a dispute resolution process.
Finally, this issue has rarely been a point of discussion between us and our clients. When a client requests that we use the word "approved" we do so, even though our attorney cringes. Thankfully, many of our clients understand the purpose of our review of contractor submittals and do not object to language, or words, that may provide an extra measure of clarification that the contractor carries primary responsibility for preparing accurate and complete submittals. |
David R. Combs (Unregistered Guest)
Unregistered guest
| | Posted on Monday, June 16, 2003 - 07:07 pm: | |
John,
The suggestion mentioned in my posting was not mine, but that of the referenced book's author. I personally would not recommend such a contentious act. I merely point out that it CAN happen, and for design professionals in general to be aware that it could.
As for asking a contractor to use a properly worded submittal stamp - I most certainly would, and have. As the administrator of the construction contract, the design professional has the duty (read OBLIGATION) to point out non-complying issues - work or otherwise. To allow the contractor to use a stamp containing inappropriate or exculpatory language would be akin to allowing non-conforming work to go uncorrected. Not to mention be an admission that the contractor is not doing their job.
To nip this in the bud, I've inserted a provision in Section 01330 that states:
"1. Language on Contractor’s submittal review stamp shall be consistent with the requirements of the Agreement and General Conditions.
2. A stamp containing language which defers or assigns Contractor’s responsibilities to subcontractor will not be permitted; submittals bearing a stamp with such language will be returned without action. Any delay due to such rejection will not be grounds for an extension of Contract Time."
Such a provision is neither mistrusting nor contentious. It merely reiterates the General Conditions in that the Contractor must approve the submittal. After all, when it comes to compliance with the contract documents, the design professional is merely the messenger, not the dictator, and does not have the authority to waive any contractual requirement. After about the second or third rejection, they get the hint and everything runs smoothly from that point. But if we're going to hold the contractor's feet to the fire, we would be niaive to think he won't hold ours.
It is when the parties FULLY understand and respect the duties, rights, roles, and responsibilities of all the others that a good and amicable working relationship among the team is realized. As long as there's a decent, complete, well-coordinated set of drawings, and mutual respect between the parties - including architect and contractor, one can use words like "approved," "inspected," and "certified" all day long without incident. It's not semantics that paves the way to the courthouse, but incompetence, unreasonable expectations, and a failure to recognize and respect the rights, roles, and responsibilities of ALL the parties, including one's own.
It is my personal feeling that design professionals' attorneys and liability insurance carriers have been serving to protect their own financial interests as well as those of their clients, possibly to the detriment of the profession. Their "do-whatever-it-takes-to-protect-your-butt-and-limit-your-liability" stances, guidance, and recommendations (whether they be for financial or design incompetence reasons), as well as design professionals shying away from certain duties and obligations, I strongly feel, have done much to tarnish the reputation of design professionals. The emergence and popularity of design-build and construction management delivery methods over the past 15 or 20 years bears that out. Architects left a gap that those entities are more than willing to fill. And have.
But I digress . . .
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John Bunzick, CCS, CCCA
Senior Member
Username: Bunzick
Post Number: 105
Registered: 03-2002
| | Posted on Tuesday, June 17, 2003 - 09:09 am: | |
David, I think you're right on all counts. Perhaps this is some part of the reason for the decline in perceived value of architects by many owners - with the resulting fee squeezing. |
Dennis Hall (Unregistered Guest)
Unregistered guest
| | Posted on Tuesday, June 17, 2003 - 12:54 pm: | |
I have been pondering trashing my shop drawing stamp and using a "Submittal Transmittal" form. I have seen these in the past and have considered this type of formal transmittal format, and in light of this discussion, it makes good sense.
The "Submittal Transmittal" form has a place for the contractor to insert the submittal number, product, specification section, subcontractor, check boxes for "approved" or "approved with comments", the correct wording stating that the contractor has verified the field dimensions, acknowledment that work not conforming to contract documents is not approved, and etc. It also has a place for the contractor's signiture.
Under all this is the Architect's review stuff including date received, sent to consultant, and returned with the appropriate status check boxes.
I am getting tried of leaving things up to risk, and then playing the bad guy. This type of form allows one to track a submittal and resubmittal. It is included as a project form in the project manual and the contractor can simply copy it and use it for all submittals. And if I want to change the form, that is easy to do.
All I need a little time to put it together. Maybe next month. |
David Axt, AIA, CCS, CSI
Senior Member
Username: David_axt
Post Number: 135
Registered: 03-2002
| | Posted on Tuesday, June 17, 2003 - 01:57 pm: | |
This approved vs. reviewed came about from a supplier/subcontractor. He submitted shop drawings and we looked at them. He then installed the item and it does not fit. The sub claims that we approved the shop drawings and it is our fault. We say that we only reviewed the shop drawings and it is his resposibility for field measurements.
The scenerio is actually more complicated than described, but you get the idea.
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William C. Pegues, FCSI, CCS
Senior Member
Username: Wpegues
Post Number: 168
Registered: 10-2002
| | Posted on Tuesday, June 17, 2003 - 02:28 pm: | |
David,
Whether one is using the language of approved or reviewed, the issue of a sub following shop drawings that are incorrect or incomplete and misinstalling the product (field measurements or otherwise) really has nothing to do with the language of 'approved' or 'reviewed'.
It involves just what you are checking the shop drawings for.
The concept that the architect's drawings and other documents are replaced by a set of shop drawings is somewhat silly. You show the design, you design it once - and an architect's review should be for conformance with the design and your drawings.
He may have blatant errors in the shop drawings, the architect should not be held responsible for picking up all the subs errors on the shop drawings.
Every division 1 I have ever seen concerning submittals always has carried a paragraph similar to the following...
>>>
The Architect will review submittals only for conformance with the design concept of the project and with information given in the Contract Documents. Errors and discrepancies observed during review of submittals will be noted, but checking will not include verification of dimensions or quantities. The Architect’s review and approval shall not relieve the Contractor from responsibility for errors or omissions in shop drawings or product data submittals or for lack of coordination in assembly of materials and equipment with other work, nor from the responsibility of furnishing materials and labor not indicated on approved shop drawings or product data, but required by the Contract Documents for completion of the work.
>>>
What does yours say? That would seem to be the entire crux of the problem as you state it.
The stamp we use even provides additional support, and the text of the stamp is quoted completely in our submittals section.
>>>
Approval is only for conformance with the design concept of the project and with the information provided in the Contract Documents.
The Contractor is responsible for all dimensions to be confirmed and correlated at the Site; for information that pertains solely to the fabrication processes or to the means, methods, techniques, sequences, and procedures of construction; and for coordination of the work of all trades.
<<<
I think the scenario is a lot less complicated than you make it - unless of course you do not define as above just what extent your review or approval is limited to. If you have not, its still simple - and you are going to be on the short end of the stick. 'Review' vs 'approved' has nothing to do with this position. Every lawyer I have ever talked to has actually advised that you get no protection from 'review' vs 'approved'.
It all hinges on the scope of your review and how you defined it - or did not as the case may be.
William |
(Unregistered Guest)
Unregistered guest
| | Posted on Tuesday, June 17, 2003 - 03:02 pm: | |
Refer back to the general conditions and Division 1. Standard general conditions and Division 1 language states the roles and responsiblities of the design professional and the contractor and for what each is reviewing or approving. The design professional is responsible for what it has control of - the design and preparation of the documents; the contractor is responsible for what it has control of - the construction and the means, methods, techniques, sequencing, safety, constructibility, etc.
Review by each entity has a purpose that is based upon the different agreements for design and construction. The design agreement is for design only. The construction agreement is for the construction. Each has its own set of responsiblities. These responsiblities are stated in the general conditions and expanded in Division 1.
The contractor submittal tells the design professional how it intends to construct or achieve the design with what materials.
The design professional reviews the submittal to ensure compliance with the design intent and the specified materials as well as quality of those materials and the workmanship.
The design professional has no control over constructiblity. That belongs to the contractor by contract.
In short, using standard front end documents, the review whether an approval or rejection of the submittal by the contractor and the design professional are for entirely different purposes and perspectives.
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William C. Pegues, FCSI, CCS
Senior Member
Username: Wpegues
Post Number: 169
Registered: 10-2002
| | Posted on Tuesday, June 17, 2003 - 03:18 pm: | |
Very well stated and exactly my thoughts.
We always provide the expansion our review in Division 1 because a number of our owner's have custom general conditions of their own over which we have no input. We often don't get a copy to even look at before they issue the project. We have found at times they are missing some of the definitions of responsilities.
William |
(Unregistered Guest)
Unregistered guest
| | Posted on Monday, June 30, 2003 - 10:52 am: | |
John B., RE: June 17 posting:
I'm certain that it is.
The AIA Handbook of Professional Practice paints this picture more clearly. Of the over 980 pages in what should be an authoritative tome, only 9 pages - less than 1 percent - are spent on construction contract administration. For the phase that typically garners 20 to 25 percent of the architect's fee, and accounts for upwards of 70 to 80 percent of the liability issues, I would expect to see a more comprehensive mention. Submittal review gets a mere two-sentence footnote.
And at the end of the CCA chapter, where the author lists sources for additional information, the CSI Manual of Practice is not even listed!
Could this be construed as a commentary on AIA's perception of CSI, and their work, on the profession and construction industry? |
Phil Kabza
Junior Member
Username: Phil_kabza
Post Number: 5
Registered: 12-2002
| | Posted on Monday, July 14, 2003 - 07:44 pm: | |
Mr. Unregistered raises an important point; we shouldn't blame the AIA alone for the benign neglect of the technical side of architectural practice. As I pointed out in a recent CSINet TeamCS column, a search of the course descriptions of the leading architectural school in the nation turned up the word "construction" 5 times, and the word "specification" twice, out of 160 courses.
We continue to fund our universities and our professional organizations, and they continue their culture. I wonder what state legislators would do to state university funding if they were aware of the great disconnect between "the health, safety, and welfare of the public" and the curricula of their state architecture schools? |
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