Shop Drawings and Submittals Part 2 – Types of Submittals, by Kevin O’Beirne, PE

Construction specifications often require a very large number of contractor-furnished submittals.  Without differentiation, the various submittals may become a tangled muddle for the contractor’s team, the design professional, and others involved in construction contract administration, such as an owner-hired construction manager as advisor (CMa) or program manager. 

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Shop Drawings and Submittals
Part 1 – Definition, Purpose, and Necessity
by Kevin O’Beirne, PE

This is the first in a six-part series of articles on shop drawings and submittals. Forthcoming articles in the series will address: the various types of submittals, liability associated with submittal reviews; submittal review stamps; submittals with deviations from contract requirements; and delegated design submittals.
Preparing, processing, and reviewing shop drawings and other contractor-furnished
submittals is a labor-intensive construction stage activity for contractors and design
professionals. While it is widely accepted that submittals are an often-tiresome part of
construction, what are and are not submittals, and their purpose and necessity, are
often not well understood.

What are and are not Submittals?

Terminology concerning submittals is not universal, and the terms “shop drawing” and
“submittal” are not synonyms, Standard general conditions in widespread use in the
United States establish several defined terms pertinent to this topic.

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Specifications for Projects with a Construction Manager as Advisor by Kevin O’Beirne

Certain project delivery methods may include an owner-hired construction manager as advisor (CMa), most often for design-bid-build (D-B-B) and construction manager at risk (CMAR) projects. In CMAR projects, a CMa is often termed an “owner’s representative” or “owner’s authorized representative” rather than “construction manager”. Sometimes, design-build (D-B) projects include an “owner’s consultant” who may, in […]

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Does a performance bond require termination of the principal as a condition precedent to the surety’s obligations? Arch Insurance Co. v. The Graphic Builders LLC. United States District Court (Massachusetts) (2021), by Hugh Anderson

Summary: The Graphic Builders (TGB) was the general contractor on an apartment building construction project in Boston. TGB retained a subcontractor, RCM Modular, to fabricate, deliver, and assemble modular components of the apartment building. TGB required RCM to furnish a subcontractor’s performance bond covering RCM’s work. Arch Insurance issued the required bond. Based on excerpts, […]

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Entitlement of contractor’s “Project Manager” to recourse under the project’s payment bond. Dickson v. Forney Enterprises, Inc. United States District Court (Eastern District of Maryland) (2021), by Hugh Anderson

Summary: Forney Enterprises entered into a contract with the federal government to repair and upgrade staircases in the Pentagon. Forney then entered into a subcontract with Dickson, a professional engineer, under which Dickson, as “Project Manager,” performed supervisory duties including coordinating deliveries, inspecting materials, making field measurements, and supervising demolition. After more than three years […]

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Judicial conversion of a termination for cause to a termination for convenience. Conway Construction Co. v. City of Puyallup. Supreme Court of Washington (2021), by Hugh Anderson

Summary: The City of Puyallup contracted with Conway Construction Company to build a road—reportedly America’s first arterial roadway built with pervious concrete. There were problems with the project, including contentions by the City that Conway’s work did not meet the requirements of the specifications, and site safety issues. The City eventually issued a notice of […]

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Did a supplier satisfy the requirements for making a payment bond claim by sending the notice of claim by e-mail? Johnson-Lancaster & Assocs. v. H.M.C., Inc. United States District Court (Maryland) (2021), by Hugh Anderson

Summary: Plaintiff Johnson-Lancaster supplied (and apparently installed) food service equipment as part of the renovation of the Prince George’s County Courthouse cafeteria. The subcontractor that had engaged Johnson-Lancaster failed to pay for the materials and services, resulting in a reported balance owed of $175,571. Johnson-Lancaster submitted a copy of its claim to the prime contractor, […]

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When does the six-year statute of repose begin to run for a 28-building condominium project? D’Allesandro v. Lennar Hingham Holdings, LLC. Supreme Judicial Court of Massachusetts (2020).

Summary: The Hewitts Landing Condominium in Hingham, Mass., is comprised of 28 separate buildings containing a total of 150 units, constructed between 2008 and 2015. In 2017 the condominium association filed a lawsuit, based primarily on tort claims, against the developer, the contractor, the construction manager, and others alleging design and construction defects in the […]

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Enforceability of pay-if-paid clauses under Nevada law. APCO Construction, Inc. v. Zitting Brothers Construction, Inc. Supreme Court of Nevada (2020). by Hugh Anderson

APCO Construction was the general contractor on a Las Vegas construction project that ground to a halt in late 2008. APCO subcontracted wood-framing, sheathing, and shimming work to Zitting Construction. The subcontract stated that payment to Zitting was conditioned on APCO’s receipt of payment from the project owner, Gemstone—as the Nevada Supreme Court described it, this was “known colloquially as a pay-if-paid clause.”

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Did a subcontractor’s commercial general liability insurer have a duty to defend the project owner and construction manager in an injury lawsuit by the subcontractor’s employee? Scottsdale Insurance Company v. Columbia Insurance Group, Inc. United States Court of Appeals for the Seventh Circuit (2020). by Hugh Anderson

DH Mechanical provided heating, ventilating, and air conditioning construction services for a building construction project in Chicago. A TDH employee plunged through an unguarded opening and fell 22 feet, sustaining serious injuries. The employee sued the construction manager, Prairie Management and Development, and the project owner, Rockwell Properties, alleging negligent supervision and monitoring of the work of the subcontractors and of the worksite; the lawsuit also included claims against other project participants. The lawsuit did not contain any direct or express claims or allegations against TDH Mechanical, which was not subject to injury litigation by an employee, by virtue of the workers’ compensation laws.

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