ConstructionPro Week, Volume: 5 - Issue: 5 - 02/05/2016

Submittal Requirements: Enforcement Is All or Nothing

By Bruce Jervis

 

Construction contracts commonly require contractor submittals, which must be approved by the project owner before work can commence. The subjects range from planned schedule to environmental protection, equipment specifications to safety plan, quality control to traffic control. The contract treats owner approval as a precondition to performance. In practice, however, it frequently is not.

 

A recent federal contract required multiple submittals. The environmental protection plan had to be approved before the contractor could mobilize at the site. The government directed the contractor to mobilize before the plan, or any other submittal, had been approved.

 

In a subsequent delay dispute, the government invoked the contractor’s lack of approved submittals to argue that the contractor was unable to perform notwithstanding the government’s failure to provide timely site access. This argument was rejected. Having waived the requirement for approval of the environmental plan, the government lost the right to enforce the other approval requirements.

 

What has been your experience with submittal requirements? Do project owners consistently follow the approval procedure? Or, is approval granted after work has started, granted on a pro forma basis or ignored altogether? Your comments are welcomed.

 

COMMENTS

This is a serious contractual, management and construction problem. The court may have gone a little overboard in denying enforcement rights on other submittals, but that depends on the details. The larger problem is the gap between contractual requirements for submissions (as well as other specs) and construction practice.

Project manuals are too often bloated documents containing both unnecessary and non applicable requirements written by specification writers for a minimum fee. Few Owners, project managers, A&E’s and contractors, actually read them cover to cover, let alone actually know them. We have heard all too often that:

• “the specs are only for when there’s a problem.”

• “nobody actually reads those things.”

• “that’s not the way we do it.”

• “we thought that was just boilerplate.”

As Owner’s project managers we find ourselves constantly pushing for better quality documents and adherence to those documents. But this is an unending project to project struggle.


Posted by: Eden Milroy, AIA Pilot Development Partners Inc. - Friday, February 05, 2016 12:53 PM


Having worked both sides as owner rep and with construction contractors, I am no longer surprised, though still disappointed, by owners without the tech capability to review unwillingness to accept the duty to approve, and of contractors that think specs are for guidance only. You get what you pay for in both design and implementation.
Posted by: Phil Brozek - Friday, February 05, 2016 2:00 PM


 









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