Shop Drawing “Approval” Liability
One of the most common questions that engineers-and architects-ask is whether to mark shop drawings and other submittals "approved," or whether to take some lesser action. This is an area in which legal advice has changed over the years.
One of the most common questions that engineers-and architects-ask is whether to mark shop drawings and other submittals “approved,” or whether to take some lesser action. This is an area in which legal advice has changed over the years.
Going back 15 or 20 years, it was common for lawyers to recommend that A/Es avoid the use of the word “approved” when they reviewed and accepted a shop drawing. The fear was that a judge or jury-and to a lesser extent, an arbitrator-might assume that the design professional had reviewed the shop drawing for all purposes, including field dimensions, safety issues and other matters outside the proper scope of an engineer’s or architect’s concern. Claimants and their lawyers focused on the word “approved” and tried to hold the design professional liable, at least in part, for issues outside the scope of its usual duties.
No exceptions taken
A common “solution” was to recommend that synonymous language be used. Often an engineer would be told to stamp the drawings with a phrase like “no exceptions taken.” This and similar ambiguous phrases were intended to convey the notion that the engineer was not objecting to any aspect of the shop drawing, but had not reviewed and approved all of its various aspects.
But this tactic did not work for long. Judges, juries and especially arbitrators quickly decided that “no exceptions taken” meant “approved,” and interpreted the two phrases to have identical meanings. For example, in a recent lawsuit, an architect was put on the witness stand and asked what “no exceptions taken” means. He responded that it means “approved.” Consequently, it became clear that a better approach needed to be developed to prevent claimants from misconstruing the limited nature of a design professional’s approval of shop drawings.
The solution has been to explicitly limit the scope of the engineer’s or architect’s review both in the contract and on the shop-drawing stamp itself. Although most shop-drawing stamps now include an “approved” option, this approach uses language that strictly limits the scope of the submittal review to “conformance with information given and the intent of the construction documents.”
The graphic on this page depicts a typical shop-drawing stamp that explicitly explains the purposes for which the design professional is not reviewing the submittal. It is important for the stamp to exclude review for the purposes of verifying dimensions, safety analysis and the like, because these are solely the contractor’s obligations. By putting this limitation in the shop-drawing stamp, no argument can be made that anyone was relying on the A/E’s review and approval for those explicit purposes.
Two other issues often arise with regard to review of shop drawings and similar submittals. A common question is whether the design professional should reject the submittal if the general contractor has not reviewed it first. Usually, it is a drain on the A/E firm’s resources when the general contractor does not perform its function of submittal review prior to forwarding, or having subcontractors forward the submittals directly to the engineer or architect.
For liability as well as financial reasons, it is a good general practice for design professionals to require the general contractor to have reviewed and approved the shop drawings before the A/E reviews them. For construction-worker injury claims, judges and juries are hesitant to rely on exculpatory clauses in contracts and on shop-drawing stamps that exclude any specific issues from the scope of the design professional’s review.
However, if the engineer or architect is always careful to require the general contractor’s review and approval before reviewing the shop drawings, then the court is usually more comfortable with the A/E’s limited role because there is an awareness that safety reviews and similar reviews are being performed by the contractor.
A recent case in the Illinois appellate court against a structural engineer, Block v. Lohan et al. , was resolved in favor of the engineer precisely on that point.
The second question which is commonly asked about shop drawings and similar submittals is the extent to which the A/E can delegate design decisions to the construction team. Particularly with regard to heating, ventilation and air-conditioning design and structural steel connections, it is common for the designer to establish performance criteria, but to leave the final choice of how to achieve those criteria up to the contractor. Yet contractors have frequently objected to this practice, claiming it to be an improper delegation of design responsibility.
This is a topic of significant debate and disagreement throughout the country. Practices may not be uniform among the states, and many states have yet to issue rules or offer guidelines on this issue.
On the books
A recent and acclaimed decision from the New York courts may ultimately provide the basis for a consensus. In General Building Contractors of New York State, Inc. v. New York State Education Department, the New York Court of Appeals held that a design professional could properly delegate design decisions to a contractor, provided that the design professional required the contractor to have the design performed by a duly licensed professional hired by the contractor who would sign and seal the design. The design professional would then be permitted to rely upon the accuracy and appropriateness of the design as if it had been done by another professional design consultant. The American Institute of Architects has adopted this concept in its 1997 edition of the A201 General Conditions. Paragraph 3.12.10 states:
” The Contractor shall not be required to provide professional services which constitute the Practice of architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs to provide such services in order to carry out the Contractor’s responsibilities for construction means, methods, techniques, sequences and procedures.
“The Contractor shall not be required to provide professional services in violation of applicable law. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the Owner and the Architect will specify all performance and design criteria that such services must satisfy.
The Contractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others shall bear such professional’s written approval when submitted to the Architect. The Owner and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided the Owner and Architect have specified to the Contractor all performance and design criteria that such services must satisfy.
“Pursuant to this Subparagraph 3.12.10 the Architect will review, approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents.”
This provision makes the engineer responsible for the design criteria and the contractor responsible for the final engineering. However, the design criteria engineer does not have to double-check calculations or other final engineering details that have been properly stamped and sealed by the contractor’s engineer. Although each engineer must check with the law of its own jurisdiction, this approach will likely be commonly accepted in the near future.
What’s your opinion? To submit a Professional Practices article for consideration, write to Scott Siddens in care of this magazine or at firstname.lastname@example.org.
About the author
Mark C. Friedlander is a partner in the construction law group at the law firm of Schiff Hardin & Waite, Chicago. He obtained his B.A. from the University of Michigan in 1978, and his J.D. from Harvard Law School in 1981. He is currently an adjunct professor at the University of Illinois at Chicago School of Architecture, and was a lecturer at Northwestern University’s Engineering School in 1997, the Illinois Institute of Technology School of Civil Engineering from 1987 to 1989 and at the Engineering School of the University of Wisconsin in 1988 and 1990. Friedlander concentrates his practice in construction law and litigation.