Contractors are frequently required to submit shop drawings, material samples and equipment specifications for owner approval. One might assume that if a contractor proceeds in accordance with an approved submittal, the contractor has complied with the contract. Not necessarily. Construction contracts usually state that approval is for design concept only. Approval does not waive or alter the requirements of the contract. Approval does not prevent the owner from later rejecting the work prior to final acceptance.
What kind of approval is this? Contractors need assurance that if they perform in accordance with an approved document, they are in compliance with the contract. Yet approval is conditional, even illusory.
In a recent case, a contractor submitted a number of shop drawings. The owner approved the submittals, but only after requesting additional information and initially rejecting some of the documents. Even after this careful, studied response, however, approval was not binding on the owner, who later directed performance of extensive corrective work. The contractor had not notified the owner that the submittals contained deviations from the contract requirements.
I invite your comments below on the shop drawing submittal and approval process.
Are project owners trying to have it both ways? Or is it a contractor’s own fault when it submits a deviating document and fails to alert the owner to that fact?
Don't miss next week's issue of Construction Claims Advisor:
- No-Damage-For-Delay Clause Excludes Claim from Contractual Notice Requirement
- Proposal Letter May Have Negated Price Ceiling
- Attorney Fee Recovery Limited to Appeal of Wrongful Termination
Bruce Jervis, Editor
Construction Claims Advisor
