Are these part of my contract, and how should I proceed?
Submittals and Shop Drawings
All shop drawings are submittals, but not all submittals are shop drawings. Typically, shop drawings are fabrication or assembly drawings, or project-specific summaries of the system components. Schedules, such as progress schedules, submittal schedules, and schedules of values are submittals, but are not “shop drawings.”
Submittals are required to ensure that the design team and the contractor understand and have agreed upon how they will perform the work called for in the contract. Some have called the submittal process a “dialogue” between contractor, trades, and design team, or a quality assurance mechanism controlled by the design team. At a high level, submittals simply indicate the contractor’s proposed method for complying with the contract’s requirements.
Submittals must be issued and approved before equipment or products are purchased, fabricated and delivered, and before the work is performed on site. Although this process is labor intensive and time consuming, it is critical to ensure that the design and construction teams are on the same page and that nothing slips through the cracks. Any failure in this process can be extremely expensive, and may lead to delays, liquidated damages, claims and possibly to arbitration or litigation.
Submittals are not contract documents and cannot alter the contract. Problems arise, however, when there are substitutions and changes made in submittal responses with no further documentation to actually alter the contract.
To Proceed or Not to Proceed
Although the AIA A201—2017, Standard General Conditions of the Contract for Construction has provisions governing how submittals work, these provisions can be a bit inconsistent.
By way of example, Paragraph 3.12.4 of AIA Document A-201-2017 provides simply: “Shop drawing, product data samples and other similar submittals are not contract documents.” However, Paragraph 3.12.8 of AIA Document- A201-2017 makes it clear that the contractor must perform the work called for in the submittal, even if it conflicts with the contract:
The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from the requirements of the Contract Documents by the Architect’s approval of Shop Drawings, Product Data, Samples, or similar submittals, unless the Contractor has specifically notified the Architect of such deviation at the time of submittal and (1) the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples, or similar submittals, by the Architect’s approval thereof.
Based on these provisions, a contractor is prohibited from performing any work covered in a submittal until it is approved by the architect or engineer. Once approved, contractors must perform the work in accordance with the approved submittal. However, even if the architect approves a shop drawing that includes a deviation from the contract documents, the contractor’s obligation remains compliance with the contract documents - not the shop drawing.
From the contractor’s perspective it may feel like “heads I win and tails you lose.”
Historically, the case law on the effect of approved submittals was conflicting. The modern trend seems to be that if a submittal is approved which requires less quantity or quality than provided for in the contract documents, the approved submittal will not have the effect of modifying and reducing the requirements of the contract documents. If the shop drawing increases the quantity or quality of the Work called for in the contract, however, it may operate to increase the contractor’s obligations under the contract. Section 3.12.8 of the AIA A201 provides that the work must be performed in accordance with the approved submittals. That provision essentially requires that the contractor must meet both the requirements of the contract document and any requirements in the approved submittals.
This provision in the AIA form is somewhat inconsistent with the statement that “approved submittals are not contract documents.” If the contractor is obligated to follow them, they certainly seem like part of the contract.
RFIs consume a great deal of time and money on any project. Navigant Construction Forum of Navigant Consulting, Inc. reviewed RFI data from 1,362 projects worldwide for a total of 1,083,807 RFIs. The projects ranged in value between $5 million and $5 billion, and each one had an average of 796 RFIs. They estimated the cost in responding to RFIs at “$1,080, while the collective cost to the project could set a firm back $859,680.”
An RFI is meant to be a means of seeking clarification, not a request to change the contract. It is most frequently and legitimately used by contractors to ask architects questions about the intent of the construction documents or to point out perceived omissions or conflicts in the design documents. Like anything else, however, it can be misused in an attempt to justify claims for additional time and money.
Are RFIs contract documents? They are not generally considered so because they cannot change contract cost or time unless incorporated into a contract modification such as a change order. However, in the event the contractor agrees that the RFI is not a change cost or time, then the RFI may well be considered a contract document under the terms of A201, which states in Article 7.4: “The Architect has authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time …”
When a contractor determines that the RFI answer changes the contract sum or time, the contractor is prohibited from proceeding with that portion of the work without the proper change document. A201, Article 7, is very specific as to the documents required for changes in the work: “Changes in the Work may be accomplished after execution of the Contract … by Change Order, Construction Change Directive or order for a minor change in the Work …”
Best Practices for Contractors
Notify the architect, in writing, if a submittal or shop drawing response is creating a deviation from the contract documents. Do not perform work on the submittal or shop drawing without written approval. Get clarification from the architect if a change in the scope of work is based on a response to a submittal or shop drawing.
The same is true for RFIs. If a response to an RFI changes or modifies the work called for in the contract, seek clarification, in writing. Make sure there is clear understanding regarding whether the RFI response will be reduced to a change order, change directive or if it is simply a minor change in the work. As with submittals and shop drawings, if you proceed with the changed work without clear direction, you proceed at your own risk.