This is the second in a six-part series of articles on shop drawings and submittals. The first article, published in the May 2021 issue of The Scope, and reprinted in EJCDC’s Blog, addressed definitions, purpose, and necessity of submittals. Forthcoming articles in the series will address: liability associated with design professionals’ review of submittals, submittal review stamps, submittals with deviations from contract requirements; and delegated design submittals..
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.
The following advantages accrue when submittals are assigned to defined categories:
- Clarity is increased.
- The construction contract is more orderly.
- Both the contractor’s project management and the design professional’s and CMa’s construction contract administration become more efficient.
- During the design stage, design professionals may more-readily observe the omission of a necessary submittal from the list of required submittals and, conversely, can more-easily identify which submittals, if any, are unnecessary for the project.
- During construction, project participants have greater understanding of each submittal’s purpose and, to a certain extent, when the submittal must be furnished by the contractor.
Four Types of Submittals
The most common categories of submittals are set forth in CSI SectionFormat—2007, which establishes the four basic types described below. Examples of common submittals in each of the four categories are presented later in this article.
Action Submittals are typically required prior to purchase, fabrication, and delivery of products to be incorporated into the permanent construction. Each action submittal needs an express, written response from the design professional, who assigns each a disposition such as, “approved”, “approved as noted”, “revise and resubmit”, and others. A forthcoming article in this series will address the dispositions assigned by the design professional, indicated via submittal review stamps or their electronic facsimiles. Action submittals are usually among the first submittals required for a given part of the construction and include shop drawings, product data, and samples, among others. Most standard construction documents require that action submittals be approved before the item is installed.
Informational Submittals indicate other information about the subject work, typically in a manner that allows the design professional or other reviewer to determine whether the submittal clearly demonstrates full compliance with the contract documents. Examples of the myriad of informational submittals are presented below. Informational submittals may be required at various times prior to, during, and following performance of the associated work. When they indicate full compliance with the contract documents, acceptance of informational submittals is often indicated only in the design professional’s or CMa’s submittal log, although some design professionals may issue a written “acceptance” for each acceptable informational submittal. When no written acceptance is issued, the design professional or CMa should furnish to the contractor a copy of the design professional’s or CMa’s submittal log not less-often than monthly. When informational submittals do not indicate full compliance with contractual requirements, the design professional or CMa must promptly furnish a written response to the contractor expressly indicating non-acceptance, with clearly articulated reasons for non-acceptance.
Closeout Submittals are, as their name implies, furnished at or near the end of the subject work to which they apply, or prior to completion of the entire construction. Whether a written response by the design professional or CMa is required is the same as discussed above for informational submittals.
Maintenance Materials Submittals are documentation of the delivery to the owner or facility manager of spare parts, extra materials, and special tools required by the contract. A specifications section’s list of required maintenance material submittals is typically the only location where the specific, required spare parts, extra materials, and tools are indicated for that section. The, contract may require, or the contractor may request, written receipts from the owner or facility manager upon delivery of the physical items; such receipts are often the actual maintenance materials submittals furnished to the design professional or CMa. . The approach to the design professional’s or CMa’s written response on maintenance materials submittals is the same as described above for informational submittals.
Submittal Type Does Not Affect Responsibility to Review
The responsibility of the design professional or other entity reviewing submittals is the same regardless of submittal type. There is no distinction of submittal types in the model language of the design professional’s scope of services in standard professional services agreements in widespread use in the United States, such as EJCDC E-500—2020, Agreement between Owner and Engineer for Professional Services (Exhibit A, Paragraphs 1.06.B.20 and 1.06.B.8), and AIA B101—2017, Standard Form of Agreement between Owner and Architect (Section 220.127.116.11). Thus, all submittals must be reviewed using the same level of skill, care, attention, and professional judgment.
Despite this, this writer has observed a widespread and often stubbornly held view by many design professionals that only action submittals require “real” review, or that informational and closeout submittals need not be reviewed at all. In fact, all submittals required by the contract documents need appropriate, careful review by the design professional or CMa. Design professionals who require—via the specifications they prepare, seal, sign, and issue—and accept contractor submittals without properly reviewing them may court significant risk.
If the design professional has no intention of reviewing a submittal, then that submittal should not be required by the contract documents. To do otherwise may not only invite unnecessary risk, but also indicates a failure to recognize the very purpose of submittals, as explained in the first article (“Shop Drawings and Submittals: Part 1 – Definition, Purpose, and Necessity”) in this series.
For example, source quality control submittals (e.g., results of factory tests and inspections) and field quality control submittals (e.g., results of tests and inspections of the installed work) are informational submittals that obviously require careful evaluation by the design professional. When such submittals do not indicate full compliance with the contract documents, the owner is relying on the design professional to be aware and reject the defective (nonconforming) work. A design professional who believes they do not have a responsibility to carefully evaluate informational and closeout submittals is analogous to a physician who refuses to read their patients’ laboratory test results before rendering a diagnosis.
Design professionals who do not intend to review some or all informational or closeout submittals required by the construction contract may eventually need to answer the following questions from an owner’s or contractor’s lawyers:
- “Do you habitually not review submittals required by the construction specifications you wrote?”
- “Why would you review some submittals and not others?”
- “Is neglecting to review certain submittals consistent with the standard of care in your professional services agreement? Please explain the reason for your answer.”
The Fifth Type: Unnecessary and Not Desired
Some design professionals require informational submittals that address the contractor’s construction means and methods, or the contractor’s programs for safety and protection, or other “means and methods” matters. Many design professionals who require such submittals correctly recognize such submittals pose significant liability when reviewed, so the design professional never intends to review them. The rationale for requiring such submittals is often articulated as, “We want to make the contractor think it through before they act,” or, “We want them to submit it to prove they have a plan,” or similar, befuddling rationales.
The contract documents should typically avoid requiring contractor submittals on construction means and methods, and safety and protection measures. Requiring such submittals has strong potential to impart to the design professional or CMa some responsibility for construction means and methods, safety and protection, or other matters normally the contractor’s sole responsibility. Standard general conditions in widespread use in the United States clearly state the contractor has responsibility for construction means, methods, techniques, procedures, and sequences, and for all associated safety and protection, because the contractor is in the best position to control the associated risks. When the contract requires submittal of means and methods, or safety and protection measures, to the design professional or CMa, the potential exists that the contractual waters for responsibility for the means and methods, or safety and protection, may be muddied, even when the design professional or CMa never intends to review the submittal.
It is best to maintain a clear, “bright line” of responsibility and liability for construction means and methods, and safety and protection. Thus, regardless of what submittal type is assigned them, the design professional should carefully consider whether “means and methods” or “safety and protection” submittals should be required at all.
Review by a Construction Manager as Advisor
In design-bid-build and design-negotiate-build projects, the design professional has full responsibility to review all the required submittals furnished by the contractor (subject to any limitations of their scope of professional services). However, in project delivery methods where a third-party is involved, such as construction manager as advisor and, in many cases, construction manager at risk (which often include an “owner’s representative” serving as a de-facto CMa), the question arises: Which owner-hired entity should review which submittals? Carefully apportioning all submittals into the categories suggested in CSI’s SectionFormat helps owners, design professionals, and CMa’s determine which entity should review which submittals.
As discussed more fully in the forthcoming, next article in this series (“Shop Drawings and Submittals: Part 3 – Liability Associated with Submittal Reviews”), the architect’s or engineer’s review of submittals is, in many respects, an extension of their design services. Therefore, it is essential that the design professional-in-responsible-charge (i.e., the architect, engineer, or geologist who sealed and signed the subject specifications section) to also have responsible charge of personnel reviewing the associated submittals, when the submittals are directly related to the design intent and the quality of the work.
Accordingly, all action submittals and certain informational submittals, such as source quality control submittals and field quality control submittals, typically must be reviewed and acted upon by the design professional-in-responsible-charge.
A CMa or owner-hired program manager may review and take action on administrative and procedural submittals that do not affect the design or the acceptability of the completed work. Examples of submittals for which a CMa or program manager may determine acceptability include construction progress schedules, schedules of values, construction photographic documentation, certain closeout submittals, all maintenance materials submittals, and perhaps others. Prior to the start of the construction stage, there should be agreement between the owner, design professional, CMa, and program manager (if any) on which entity will review and act on each submittal.
Examples of Submittal Types
Presented below is a list of common submittals by type, adapted from CSI SectionFormat. The assignments below for action submittals and informational submittals are this writer’s alone; the reader should understand SectionFormat lumps the examples together so the user can use their own judgment in assigning submittals as “action” or “informational”.
A. Action Submittals: Submit the following:
The reader should review the previous article in this series (“Shop Drawings and Submittals: Part 1 – Definition, Purpose, and Necessity”) for detailed definitions of “shop drawings”, “product data”, and “samples” and their associated differences.
1. Shop Drawings
2. Product Data
4. Delegated Design “Instruments of Service” Submittals:
Delegated design submittals may be apportioned into two broad types: (1) the delegated design professional’s “instruments of service”, which are sealed and signed by the delegated design professional and are listed below, and (2) other submittals, such as shop drawings (not sealed and signed), product data, samples for the subject work, and traditional informational submittals. In accordance with the provisions of both AIA A201—2017, General Conditions, and EJCDC C-700—2018, General Conditions, concerning delegated design, the architect or engineer is to expressly “approve’ the submitted delegated design (i.e., “instruments of service” submittals) for limited purposes. This writer categorizes the second broad type of delegated design submittals as “informational submittals” because they must be reviewed and approved by the delegated designer. Delegated design submittal review is a complex topic to be addressed in the forthcoming article, “Shop Drawings and Submittals: Part 6 – Reviewing Delegated Design Submittals”, in this series.
a. Submit the following design documents prepared, sealed, and signed by licensed, registered design professional retained by Contractor, Subcontractor, or Supplier:
1) Design drawings, including Shop Drawings when sealed and signed by the delegated design professional.
2) Design specifications.
3) Design calculations.
5. Testing Plans, Procedures, and Testing Limitations:
Testing plans should be required only in the relatively rare circumstances where test procedures, or test facility or test apparatus limitations, cannot be identified during the design stage. This writer categorizes test plans as “action submittals” because they directly affect how the acceptability of the work is determined. Such matters may also be addressed under “01 45 00 – Quality Control”.
a. Test procedure, apparatus, and limitations of apparatus and procedure, for:
1) Source quality control activities indicated in this section.
2) Field quality control activities indicated in this section.
B. Informational Submittals: Submit the following:
As indicated above, the following will be described in the forthcoming article, “Shop Drawings and Submittals: Part 6 – Reviewing Delegated Design Submittals”, in this series.
2. Delegated Design Shop Drawings (not sealed and signed by the delegated design professional), Product Data, Samples, Test Plans, Source Quality Control Submittals, Field Quality Control Submittals, and Other Submittals Approved by Contractor’s Design Professional:
Submittals for “Contractor’s Test and Evaluation Reports” cover pre-construction and post-construction test and evaluation reports, such as the results of investigations of potentially hazardous environmental conditions at the site and similar reports prepared by or for, and submitted by, the contractor. These are not submittals for source quality control and field quality control activities.
3. Contractor’s Test and Evaluation Reports
Below, “supplier” means a manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with the contractor or subcontractor of any tier to furnish materials or equipment to be incorporated in the work by the contractor or a subcontractor.
4. [Supplier] [Manufacturer] Instructions and Information:
a. Serial numbers of items furnished, equipment nameplate information, and similar information for items furnished.
b. Instructions for handling, installation, startup.
5. Source Quality Control Submittals:
Indicate required shop tests, inspections, and other source quality control requirements, and criteria for acceptance, in the “Source Quality Control’ Article at the end of “Part 2 – Products”.
a. Results of tests, inspections, and other quality control activities required by the Contract Documents and performed at the place of production or fabrication.
6. [Field] [Site] Quality Control Submittals:
Indicate required field tests, inspections, and other onsite quality control requirements and criteria for acceptance in the “Field Quality Control’ Article in “Part 3 – Execution”.
a. Results of tests, inspections, and other quality control activities required by the Contract Documents and performed at the Site.
7. Supplier Reports:
a. Report of each visit to the Site by Supplier, summarizing purpose of visit, activities while onsite, problems encounter, advice given to Contractor or Subcontractor, and actions taken.
8. Sustainable Design Submittals (other than sustainable design closeout documentation):
9. Special Procedure Submittals:
10. Qualifications Statements:
When required, clearly indicate qualifications requirements in the “Quality Assurance” Article in “Part 1 – General”.
b. Installer or applicator
c. Contractor’s delegated design professional
Informational submittals may also include other administrative submittals, such as construction progress schedules, schedules of submittals, schedules of values, photographic documentation, copies of permits obtained by the contractor, contractor’s daily reports of onsite work activity, survey data, and other administrative submittals.
C. Closeout Submittals:
1. Maintenance Contracts
2. Operations and Maintenance Data
The provision below addresses bonds such as roofing bonds and special bonds for specific materials or equipment, such as a warranty bond required when a substitute is approved.
Before specifying special or extended warranties, (1) determine if such warranties are available; (2) their cost, (3) whether the owner requires them, (4) whether adequate protection is available under the General Conditions’ correction period and the General Conditions’ general warranty. Coordinate with Section 01 78 36 – Warranties, when used. Requirements for special or extended warranties should be indicated in the “Warranty” Article at the end of “Part 1 – General”.
4. Warranty Documentation
Below, indicate only those record documents submittals specific to the work of the given specifications section. General provisions for record documents are typically set forth in the General Conditions (including EJCDC C-700 and AIA A201) and in Section 01 78 39 – Project Record Documents, when used.
5. Record Documentation
6. Sustainable Design Closeout Documentation
D. Maintenance Material Submittals: Furnish the following items and submit documentation of delivery to and acceptance of such items by Owner or facility manager (as applicable):
1. Spare Parts
2. Extra Materials
This article has described the benefits of allocating submittals into categories recommended by CSI, addressed how the design professional is responsible for devoting the same care and attention to all required submittals regardless of type, addressed types of submittals that should not be required at all, discussed what submittals may be reviewed by persons not under the direct supervision of than the design professional-in-responsible-charge, and presented examples of common submittals by CSI’s suggested submittal categories.
Forthcoming articles in this series will address: liability associated with design professionals’ review of submittals, submittal review stamps, submittals with deviations from contract requirements, and delegated design submittals.
Text © 2020-2021 by Kevin O’Beirne
The opinions expressed herein are the views of the author alone and should not be attributed to any other individual or entity.
The author of this article is not an attorney and nothing in this article constitutes legal advice. Readers in need of legal advice should consult with a qualified attorney.