Shop drawings and other submittals are intended to establish that the contractor’s performance will conform to the design elements of the contract. Those elements are presumed to be objective. And the designer should be objective as well in evaluating conformance to the contract. The submittal of samples or shop drawings should not be viewed as an opportunity to redesign the project or use the trial-and-error method to develop nuances in the design. Yet this is exactly what happened on one recent project.
The contract called for buildings to be faced with precast concrete panels. The color of the panels had to match the color of a sample piece of material provided by the project architect. A lengthy process of submittal, rejection, resubmittal and rejection followed. Nothing seemed to suit the architect. Submittals were rejected based on subjective factors unrelated to the material sample provided by the architect.
It was later determined that the contractor’s initial submittal had conformed to the color of the material provided by the architect. The entire process, which was ruled a constructive change in the contract, resulted from the architect’s “artistic bent,” his “uncertain, evolving idea of the color he wanted to see.”
Have you been involved in situations where a designer has misused the submittal process? Have you experienced submittal rejections which were not based on objective contract requirements but appeared to be an effort to fine tune or flesh out the design? As always, I welcome your comments.
Featured in Next Week’s Construction Claims Advisor:
- Home Office Overhead Denied Due to Lack of “Standby”
- Tenant’s Contractors Allowed to Lien Property
- Delivery Order Treated as Stand-Alone Contract