There is more than one way to build a project to the plans and specs that Architects and Engineers provide. The “means and methods” for doing so are typically up to the contractor. But sometimes those means and methods are subject to advance scrutiny by the design professional, through the “shop drawing” submittal process.
As the popular AIA A201 General Conditions of the Contract for Construction (2007) explains in Section 3.12.4, shop drawings “demonstrate the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents for those portions of the Work for which the Contract Documents require submittals.” Section 3.12.5 requires the contractor to review shop drawings “for compliance with the Contract Documents, and approve and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents.” By the act of submitting them, the contractor warrants that he has “(1) reviewed and approved the shop drawings; (2) determined and verified materials, field measurements and field construction criteria related thereto, or will do so; and (3) checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents.” Section 3.12.6.
At that point, the Architect’s own review kicks in―but it is more limited. Section 4.2.7 says that a design professional’s review of shop drawings is "only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents." The phrase “design concept” is undefined, and vague enough to preclude the argument that an Architect’s shop drawing approval incorporates the drawing into the Contract Documents.
The Catch 22 for the contractor is that he has no choice but to implement approved shop drawings, yet he is on the hook if they don’t conform to the Contract Documents. Section 3.12.8 says that “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.” Since the contractor must implement that approved drawing, in practical effect it is indistinguishable from any other plan or spec in the Contract Documents that the Contractor must implement―except that the contractor “owns” it; the Architect does not. The drawing effectively becomes part of the design, but the only part of the design that a contractor implements at his own risk.
How great is the risk that an approved shop drawing will come back to haunt the contractor despite Architect approval? This is where human nature kicks in. Because the Architect who approves a shop drawing is normally the same person signing off on compliance with the Contract Documents for purposes of payment and substantial completion, any “deviations from the requirements of the Contract Documents” arising from that shop drawing are unlikely to be called out. Subjecting the contractor to liability for repair and replacement of the “approved” item could subject the Architect to a bit of embarrassment as well. But even if the Architect certifies compliance with the Contract Documents, that won’t relieve the contractor of liability under his warranty. Section 9.10.4 makes sure of that (“The making of final payment shall constitute a waiver of Claims by the Owner except those arising from . . . failure of the Work to comply with the requirements of the Contract Documents . . .”).
If Architect approval doesn’t get the contractor off the hook to the owner, does it put the Architect on that hook with him? That depends. An Architect who didn’t catch or correct an error in a shop drawing and approved it could well be liable to the owner if his contract doesn’t absolve him in advance. The AIA B101 Standard Form of Agreement Between Owner and Contractor (2007) attempts to do exactly that, parroting the A201 in providing that review is “only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents” (Section 3.6.4.2). Once again, “design concept” is undefined.
No surprises here, when you remember what AIA stands for.
As the popular AIA A201 General Conditions of the Contract for Construction (2007) explains in Section 3.12.4, shop drawings “demonstrate the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents for those portions of the Work for which the Contract Documents require submittals.” Section 3.12.5 requires the contractor to review shop drawings “for compliance with the Contract Documents, and approve and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents.” By the act of submitting them, the contractor warrants that he has “(1) reviewed and approved the shop drawings; (2) determined and verified materials, field measurements and field construction criteria related thereto, or will do so; and (3) checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents.” Section 3.12.6.
At that point, the Architect’s own review kicks in―but it is more limited. Section 4.2.7 says that a design professional’s review of shop drawings is "only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents." The phrase “design concept” is undefined, and vague enough to preclude the argument that an Architect’s shop drawing approval incorporates the drawing into the Contract Documents.
The Catch 22 for the contractor is that he has no choice but to implement approved shop drawings, yet he is on the hook if they don’t conform to the Contract Documents. Section 3.12.8 says that “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.” Since the contractor must implement that approved drawing, in practical effect it is indistinguishable from any other plan or spec in the Contract Documents that the Contractor must implement―except that the contractor “owns” it; the Architect does not. The drawing effectively becomes part of the design, but the only part of the design that a contractor implements at his own risk.
How great is the risk that an approved shop drawing will come back to haunt the contractor despite Architect approval? This is where human nature kicks in. Because the Architect who approves a shop drawing is normally the same person signing off on compliance with the Contract Documents for purposes of payment and substantial completion, any “deviations from the requirements of the Contract Documents” arising from that shop drawing are unlikely to be called out. Subjecting the contractor to liability for repair and replacement of the “approved” item could subject the Architect to a bit of embarrassment as well. But even if the Architect certifies compliance with the Contract Documents, that won’t relieve the contractor of liability under his warranty. Section 9.10.4 makes sure of that (“The making of final payment shall constitute a waiver of Claims by the Owner except those arising from . . . failure of the Work to comply with the requirements of the Contract Documents . . .”).
If Architect approval doesn’t get the contractor off the hook to the owner, does it put the Architect on that hook with him? That depends. An Architect who didn’t catch or correct an error in a shop drawing and approved it could well be liable to the owner if his contract doesn’t absolve him in advance. The AIA B101 Standard Form of Agreement Between Owner and Contractor (2007) attempts to do exactly that, parroting the A201 in providing that review is “only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents” (Section 3.6.4.2). Once again, “design concept” is undefined.
No surprises here, when you remember what AIA stands for.
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