By Steve Rizer
If the design professional in a construction project approves a shop drawing that is contrary to the prime contract specifications, does the owner have a claim against the design professional either for negligence or breach of contract? This is one of several questions that Sherman & Howard LLC’s Stephen Hess fielded during the “Q&A” segment of a recent WPL Publishing webinar.
"The answer to the question is, curiously, 'Probably not,'” Hess told professionals attending the 90-minute program, entitled “Shop Drawings: Risks & Obligations in the Preparation and Review Process.” He explained that “it’s the contractor’s problem if it doesn’t get built according to the specifications” in such a scenario.
“If the owner says to the architect or engineer, ‘I want money from you because you approved a shop drawing that’s inconsistent with the prime contract specifications,’ the answer from the architect or engineer would be, ‘Well, okay, maybe I did, but that’s not my problem. It was still the contractor’s obligation to build it according to plans and specifications,’” Hess said. “And so, what the architect/engineer would ordinarily do is say to the owner, ‘Sure, you may have suffered damages because the construction varies from the specifications, but that’s the contractor’s problem; that’s not our problem.’ And so, usually, the owner won’t have a claim against the design professional because the design professional didn’t do anything ‘wrong’ in terms of subjecting the owner to any additional liability.”
Earlier in the webinar, Hess discussed the basic legal obligations of the parties, the role of shop drawings in construction, the 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 webinar, visit http://constructionpronet.com/Products/Shop-Drawings.aspx.