By Steve Rizer
What takes precedence -- the contractor-to-subcontractor contract or the specifications -- if a contract requires a subcontractor to provide engineering of a system but the specifications do not? This is one of the questions that popped up during the “Q&A” segment of a webinar that WPL Publishing held late last month for a target audience of architects, engineers, contractors, subcontractors, construction managers, public and private owners, consultants, and construction law attorneys.
In response, webinar presenter Stephen Hess, a member in Sherman & Howard’s Construction Practice Group, told the webinar attendee making the inquiry, “I hate to tell you that [the question] sounds like a trick question -- not that you intended it to be -- but the specifications are actually part of the contract documents. And so, in circumstances like that, if part of the contract documents allocate design responsibility to the subcontractor and the specifications don’t seem to, then you have a contract that gets resolved in the way a lot of disputes get resolved, which is by negotiation.”
If the specifications “are clear enough to indicate what the final design parameters are supposed to be, then they would take precedence. But when you have different parts of a contract that impose different responsibilities – one requires design by the sub, and one doesn’t require design by the sub -- then there’s no clear answer. I wish there were.”
Another webinar attendee commented that architects never use the word "approval" on submittal reviews and asked, “Does that change any of the protection under the Spearin Doctrine?”
Hess responded, “The answer is ‘No.’”
During the Q&A segment, Hess additionally answered the following other questions:
- “When contract documents call for a subcontractor to perform design by a design professional, what’s the responsibility during review by the project design professional?”
- “Can courts find, effectively, that there are changes that don’t go through the change-order process?”
- “What responsibility does the general contractor have to ensure subcontractors build per approved shops?”
Hess' responses to these questions are included in the ConstructionPro Network member version of this article. To sign up for a membership, click here.
During his presentation, entitled "Shop Drawings: Risks & Obligations in the Preparation and Review Process," Hess discussed the following topics: the role of shop drawings in construction; the basic legal obligations of the parties; allocation of responsibility in standard contracts; the Spearin Doctrine and shop drawings; claims arising from the shop-drawing process; and miscellaneous issues related to shop drawings.
To purchase a recording of the 90-minute webinar, visit http://constructionpronet.com/Products/1092.aspx.