Professional Practices: Are Construction Submittals Irrelevant?

Construction submittals have traditionally been the means by which contractors secure approval from project designers for how they intend to comply with contract specifications. Current practice, however, has often diminished the value of submittals...

By Charles W. Kilper, III, P.E., Vice President, Engineering, Heitmann & Associates, Inc., Chesterfield, Mo. April 1, 2002

Construction submittals have traditionally been the means by which contractors secure approval from project designers for how they intend to comply with contract specifications. Current practice, however, has often diminished the value of submittals to the point where they could be eliminated without significantly affecting the project.

In theory, project specifications identify the submittals that are required and what information they must contain. Using the specification as a checklist, the contractor prepares submittals, which confirm that project requirements will be satisfied. The reviewers—architects and engineers—study the submittals carefully, verify that they are complete and grant approval.

In this ideal scenario, the submittal process does not delay materials procurement, fabrication or installation, because the schedule is realistic. The contractor allows sufficient time to prepare submittals, and the contractor and reviewer rapidly reach a consensus that results in approval.

In addition to being identified in the project documents, most submittals are also mandated by the contract, which establishes the required contents. This makes sense when, without exceptions or qualifications, each contract and subcontract stems from an original set of project documents.

In practice, however, the submittal process can be quite different from this clear and straightforward approach.

For example, a contractor might describe in a submittal what will be provided without explicitly stating that there will or will not be full compliance with project documents. This leaves open the possibility of later claiming that a submittal’s deviation from specification documents is legitimized by the contract language, because the contract supercedes project documents.

Another common tactic employed by contractors to skirt specifications is to attempt to have submittals serve as contract change orders by including statements implying that reviewer approval constitutes acceptance of any and all deviations. In other words, the submittal supercedes the contract that required it.

Moreover, submittal reviewers might not be aware of contract provisions that effectively override project specs. When changes are made during contract negotiation, a bulletin should be issued to amend the original specification, but this is not always done. Often, no one goes back and changes the spec. Later, when a reviewer checks a submittal and identifies deviations, he is advised informally that concessions were made.

There is also the possibility that the keeper of project documents does not agree with contract concessions and chooses not to make revisions in the specs. Or, that a participant in contract negotiations wants to avoid being identified as the party who instigated deviations from project documents, because it would create the appearance of usurping authority. This could lead to a situation where a future investigator construes such an act as a clear attempt to avoid compliance with project documents. In such an instance, the records would show no explicit request to make the change and no explicit approval for the change, yet approval appears to have been implied by submittals that passed through the system without comment. Everything is negotiable

There is a widely-embraced philosophy that everything is negotiable until a project is completed. When issues of cost or schedule arise, the ground rules are often changed to expedite a solution. As a consequence, the parties make informal decisions that amount to contract changes. This approach is not necessarily wrong, but it is inconsistent with the role of submittals, which in an “everything-is-negotiable” environment become largely irrelevant.

Submittals are routed through a series of reviewers, each of whom supposedly determines acceptability according to his or her own particular responsibilities. In practice, the amount of attention that each of these reviewers devotes to the submittal can range from careful scrutiny to none at all. Only one of the reviewers may actually perform a review, while his or her colleagues limit their efforts to rubber-stamping the document. Thus, prompt attention is given to passing the paper along, but not to its content.

Some reviewers unashamedly admit that they receive and ship submittals to the next person on the distribution list the same day, without assessing the quality of the submittal. The stated purpose is to save time. Reviewers also attempt to justify sending a submittal forward—when it should be returned to the contractor—by claiming insufficient expertise to recognize serious shortcomings. Often, no expertise beyond common sense is needed, especially if deficiencies have been identified in a previous review.

For example, if details were missing from the previous submittal, anyone who reads drawings can tell if the information has been added. Reviewers should take time to screen submittals. Not only should they have sufficient expertise to determine if submittal contents justify a thorough review, but they should also have the courage to send back deficient submittals. Delegation of all decisions to “downstream” reviewers is irresponsible, because it needlessly consumes valuable time without contributing to the primary goal.

Alas, with prevailing attitudes, there is little incentive to do a thorough review. In fact, rather than being ashamed when downstream reviewers issue a disapproval, reviewers who had previously approved a deficient submittal are often indignant. There are no repercussions for doing a sloppy review. Contracts are explicit about assigning responsibility for performing reviews, but silent regarding any penalty for doing inadequate reviews. Failure of the process

The most common deficiencies in submittals are: incompleteness, lack of compliance with project documents and lack of coordination with related submittals. In some cases, quality improves with successive submittals, but in others, progress is so minimal that approvable documents are never generated. In the latter situation, the dilemma is to grant conditional approval in deference to the need to proceed with construction, or persist in disapproval, knowing that construction will eventually proceed anyway. This highlights the essential weakness of the submittal process; its success relies on collaboration of submitter and reviewer to rapidly work toward a common goal. If either party lacks the will or the resources to contribute to a successful effort, the intended result will not be achieved.

Because the success of the submittal process relies on the contractor and reviewer rapidly reaching a consensus, there is no orderly way to recover when disagreements cause ongoing delays. Even if conditional approval is given, the contractor may choose to ignore the conditions. A contractor who proceeds without approval risks the consequences of building something that does not comply with reviewed submittals.

In theory, submittals should be a reliable record of a project’s history. If there is occasion to research the project history, it should be possible to compare submittals point by point with architectural drawings and specifications. An investigator would tend to interpret the record literally and assume that all requirements and changes are to be found in formal project documents. But such analysis is in stark contrast with the shades of gray that characterize the events of a construction project. In other words, it would be naive to assume that comparison of submittals to architectural drawings and specifications will provide a complete and straightforward project history. An honest appraisal

At the outset of each project, there should be an honest appraisal of whether submittals will actually be used in a way that fulfills their purpose: demonstrating contractor compliance with project documents, and allowing architects and engineers to acknowledge the compliance and issue an approval.

If decision-makers feel free to ignore project documents when it suits their purposes, they should acknowledge it. It is pointless to generate detailed drawings and specifications if they will not be enforced. If the intent is to shop the market and select what seems adequate at a tolerable price, de facto approval is given at the time the deal is made, and there is no need for submittals for approval.

If project documents are to be strictly enforced, then all decisions that effectively nullify their requirements should be recorded and made known to reviewers well in advance of submittals. All deviations from the project documents should be explicitly stated, not implied, and clearly documented.

Often, participants in a construction project fear that they will be labeled as uncooperative if they point out noncompliances with project documents, even when they have a contractual obligation to do so. Completing construction on time is considered to be of paramount importance, as it should be, while submittals are regarded as minor diversions, which is contrary to the traditional understanding of submittals as the source of approval.

If, in practice, submittals are indeed irrelevant, then the pretense that they are important should be dropped. In particular, if approval is actually achieved through other means—such as contracts—the practice of tying approval to submittal reviews might just as well be abandoned.