The submittal process on a construction project is a difficult one. The contractor is required to submit shop drawings, product samples, manufacturer’s specifications, etc. establishing that the contractor’s proposed method of performance will comply with the contract requirements. If the contractor is proposing to deviate from those requirements, the contractor must clearly and prominently say so.
The project owner or owner’s representative reviews the submittal, either approving or disapproving it. And this is where problems arise. Although the contractor must rely on the owner’s response in order to proceed with the work, that response is frequently equivocal. A recent case provides a good example.
The owner’s engineer marked a submittal “approved as noted, resubmit.” Some proposed equipment was flagged as “inadequate,” along with a note that the matter would be “resolved as the work in the field progresses.” The contractor proceeded in accordance with its submittal and did not resubmit anything. The engineer observed the work in the field and made no demands for substitute equipment. The engineer later directed the contractor to replace equipment and testified that the initial submittal had been so bad he considered it “a joke.”
The engineer in this case received a lot of criticism. And his employer received a bad result. But the contractor was hardly blameless. Didn’t the word “resubmit” indicate the matter had not been resolved by the initial submittal? And didn’t the word “inadequate” suggest there were shortcomings in some of the proposed equipment?
What insights can you offer on the submittal process? How can parties establish finality and certainty without the time delay and administrative hassle of multiple resubmittals? I welcome your comments.
Featured in Next Week’s Construction Claims Advisor:
- Owner Could Enforce No-Damage-For-Delay Clause Despite Mismanagement
- Board Addresses Design Feature and Performance Specification
- Bid Bond Not Conditioned on Subcontracting Relationship