Submittals

Legal Consequences of Shop Drawings and Submittals

CSI Webinar: No Exceptions Taken:

Understanding the Legal Consequences of
Shop Drawings and Other Submittal


Speaker: Gerald Katz, Esq.
 

Architects and engineers routinely stamp shop drawings and other submittals with vague language—e.g., "no exceptions taken"—intended to limit their scope of, and liability for, submittal review. This seminar discusses the legal significance of these disclaimers: how do courts treat these disclaimers and what are the consequences for other project participants, such as owners, contractors and subcontractors? 

The seminar also discusses related issues such as the contractual process under which submittals are prepared, submitted, reviewed and approved; the consequences of approving defective submittals; a contractor's obligation to review and approve the submittals of its subcontractors; and statutory obligations affecting submittals. 

The submittals process is vital to any successful project. Delays in submittal submission, review and approval can—and often do—significantly impact the project schedule. This seminar will address the often-overlooked contractual and legal issues surrounding submittals that owners, architects, engineers and contractors face on projects every day.

Learning Objectives
  1. Understand the obligations under standard-from contracts of the owner, architect, engineer, contractor and subcontractors in connection with shop drawings and other submittals.
  2. Understand the legal significance of disclaimers and liability limitations used by the architect or engineer as part of their stamps.
  3. Understand the consequences to an architect for the approval of shop drawings and other submittals.
  4. Understand the architect's liability for delay in approving or taking other action on shop drawings and other submittals.
  5. Understand the contractor's obligation to review and approve shop drawings and other submittals.
  6. Understand the statutory obligations of architects and engineers in connection with shop drawings and other submittals.
Credit: 1.5 AIA CEHs, 1.5 PDHs


Select a Webinar Format:
On-Demand Webinar  $55.00 for CSI Member, $75.00 for Non-member

To Register:  http://eo2.commpartners.com/users/csi/session.php?id=7875


Information Technology Forecast for Construction

Engineering News Record, 12/28/2011, in an article by discusses the growing use of information technology in construction. Here are excerpts with my comments about what this means for building product manufacturers:
The new year will be the year of mobility... when the constraints on the flow of data into and out of the field, and the use of mobile devices to collect, share and present it, give way for good.
Almost everyone on construction jobsites carries a smart phone or other computerized device. This offers great new avenues for building product manufacturers to communicate with customers.
Watch for wireless networks, technology kiosks and pads, and tablets to sprout on more and more jobsites...
Your shop drawings, installation instructions, training videos, and other information has to be accessible.
The value chain has been joined from one end of the project delivery process to the other...
Consider the impact on your distribution strategy, sales management, and customer service.
...relatively inexpensive Tablet PCs running Android and the forthcoming Windows 8, challenge Apple's iPad and iPhone for business use in the field.  
Your field reps will have to be similarly equipped.
...independently created and relatively inexpensive apps will continue to compete with, and sometimes challenge the capabilities of more expensive, old-school, licensed software.
 "Independently created" means "provided by building product manufacturers." Move beyond providing materials to offering tools the contractor can use to run his or her business.
Three-dimensional printing of models and components will become commonly used tools. Imagineers will design, model, and print in 3-D to test and communicate ideas, and then build for real.
This will first happen in design offices. Some manufacturers use this for rapid prototyping of parts. In other cases, actual parts are now "printed."
The "Internet of Things" will grow exponentially and have a direct impact on design, engineering, construction and facilities management, as embedded sensors, cloud-based analysis and rapid data exchange turns our deaf, dumb and blind structures into introspective communicators. 
How will you build intelligence into your product? 
...expect the challenge of capturing, storing, sharing, managing, analyzing, interpreting and presenting the "big data"—that vast collection of information piling up as a product of all of that sensor data collection and analysis, to grow as well.
Intelligent machines are great at capturing, storing, sharing, and managing data, but human beings are still best for analyzing and interpreting a problem and presenting solutions. This means your sales reps must still earn the trust of customers.
In response, look for a drive to simplify data delivery through browser-based interfaces, neutral file formats and innovative visualization.
Don't leave this to your IT guy. Make sure your marketing communications team leads the charge.
In short, look for an exciting year ahead.
I agree.

BuildSite - Marketing to Contractors

Architects, engineers, and other specifiers are powerful gatekeepers for building product sales, but contractors make the actual purchase. The contractor's power to select products is particularly strong with commodity and generic types of products, putting them and the distributors serving them in the driver’s seat when it is time to choose product brands for the job. This role as the “last designer” means that contractors and distributors are crucial players in purchasing decisions.

BuildSite, is an online (and mobile) tool that helps get product information in front of distributors and contractors when buying decisions are being made. Through BuildSite, manufacturers can target buyers with messaging that is tied to "un-proprietary specs"—the kind that most contractors face.

While BuildSite can be used for product selection and for email messaging, I see its main application as a way to simplify the assembly and distribution of submittals -- the process by which a contractor sends product data sheets, sample warranty forms, material safety data sheets, and other product information to the designer.

At the present time, the system is strongest for products in Divisions 03, 07, and 09.

For additional information and a demonstration, contact:

  Melanie Loftus, Buildsite Product Manager
  mloftus@buildsite.com
  510-208-4428

Putting the Brakes on Substitutions

This is an encore of an article Michael Chusid wrote nearly 20 years ago. Substitutions remain an issue, and the article is still relevant.

Be involved in the entire specification process, and you'll increase the chances that the specs will be followed.

The only people who benefit from substitutions are the subcontractors and suppliers who win bids from competitors and then boost their profits by supplying lower-cost materials than those specified. Everybody else loses. This means that building product manufacturers have something in common with the specifier, general contractor, and building owner: You all want the project delivered as designed and specified.

So, instead of seeing yourself as the hapless victim of substitutions, act as an ally to the design team. From this position, you can influence the design and contracting procedures to help avoid or control substitutions.

Why specs go astray
Substitutions occur throughout the design process. You know the scenario: An architect calls and asks for assistance evaluating your product for a job. After a long discussion, you agree on details and specifications, and the architect says it's just the solution he's been looking for. But when the project appears in the plan rooms, the spec is based on your competitor's product, and you aren't even named as an acceptable manufacturer. What happened?

First, many layers of decision makers are involved on all but the simplest projects. Designers, draftsmen, project managers, specification writers, general contractors, subcontractors, suppliers, and building owners all play a role in product selection and substitutions. One of your toughest jobs is to identify everyone who influences the sale. You must provide each with the information they need to understand how your product contributes to the project's overall success. You should also help the design team as a whole develop a shared understanding of, and commitment to, your product.

Even after your product is specified, however, you must continue your sales effort. At each project phase, responsibilities may pass to new team members. These newcomers may not share their predecessors' understanding of your product, or they may have new criteria for the project. Promote your product with information appropriate to the phase: aesthetic or functional information during design, technical information during the construction document phase, quotes during bidding, and field support during and after construction.

Once the design team is committed to your product, they will welcome your input to assure they get what they want on the project. When this happens, you can use your understanding of construction documentation and the contracting process to steer the project to your cause.

Begin by helping the specifier prepare a tight specification. In my experience, most substitutions occur because the specs are not specific enough to keep out undesirable materials. Poorly written specs are difficult to enforce or to use as a basis for evaluating proposed substitutions. Offer designers complete and accurate technical data about your product, and help them specify it correctly.

When an architect or engineer still won't limit the bidding to your product alone, offer to recommend qualified competitors. Assured that the specification allows price competition among several reliable producers, the specifier should be willing to limit the spec to the named suppliers without employing the dreaded "or-equal" clause. It is to your advantage to bid against competitors with similar pricing and capabilities than to bid against unknown "or-equals."

Another approach is to encourage specifiers to write a firm "base bid" spec for your product and an alternate for other products. By doing so, the specifier will be expressing a preference for your product a preference that will usually prevail.

Assist with cost control
Design professionals may also need your assistance with budgeting and cost control. Many sales reps make a mistake by not bringing up cost during sales presentations because they fear designers will reject their product as too expensive. But architectural design is somewhat removed from market costs, so designers tend to specify quality over economy.

This creates a perfect opportunity for substitutions later, because the reality of costs will no doubt become an issue.  It is better for you to deal with it while you are still in a position to affect the outcome. If the product  cost is over budget, try to help the designer find savings elsewhere in the project. If that doesn't work, suggest a substitution within your own product line.

Discussing costs upfront can also alleviate the designer's fear that limiting a spec to one source may eliminate competition and inflate prices. Overcome this resistance by making written price commitments based on design documents. This is especially effective with big-ticket items. With a major chunk of the budget fixed, the designer can predict total project costs more accurately.

If appropriate, negotiate a contract directly with the building owner or as an owner-selected subcontractor. If the owner has an ongoing maintenance program, try to establish a corporate purchasing program where you become the preferred supplier in exchange for a discount or improved level of service.

A well-written project manual spells out procedures for proposing substitutions in an orderly way during the bidding or negotiating phase. Proposed changes, if acceptable to the designer and owner, are added to the bidding documents and become part of the construction contract. Any changes that take place after the execution of the contract should be formalized with a procedure called a change order. Change orders are usually reviewed by the designer, owner, and contractor since they are legally binding and can change the contract requirements and price.

Despite the change-order process, many substitutions occur informally during the submittal process. Specification frequently require suppliers to submit shop drawings, product samples, or other information about the materials. Often, a product not complying with specifications is submitted and is then considered as an acceptable "or-equal" if the contractor or architect does not specifically object.

When such changes result in building failure, the architect and contractor often accuse each other of inadequate review of the submittals. The entire construction industry benefits when changes are documented with a formal change order instead of a casual submittal.

Have a question you'd like us to answer?
Send an email to michaelchusid@chusid.com 

By Michael Chusid. Originally published in Construction Marketing Today, ©1994

Samples on Beaded Chains

Photo Credit

Beaded chains of plastic laminate samples, as shown in photo, are a standard way of distributing small samples to customers. Compared to other methods of displaying samples, such as display boards, chains are economical and easy to assemble and ship. They can be displayed simply on a hook in a distributor's showroom or designer's library. When needed in the field or to bring to a customer's office, they are compact and easy to transport; unlike boxed samples, pieces will not fall out if a chain is tipped over. Chains allow samples to be held up against other materials for color matching, or to be readily removed if necessary for closer examination. Flipping through chain engages the customer kinesthetically, creating a stronger sales impression.

Environmentally, chains minimize packaging, and can be readily recycled with other metal scrap.