Submittal Considerations for Design Professionals

Despite the critical role submittals play in a construction project’s success, design professionals often pay far less attention to them than they should. Submittals, when used effectively, can operate to head off problems at a relatively early stage of a construction project before such problems become enigmatically complex and expensive to rectify. Read on for a high-level discussion of submittals and the submittal process, along with basic strategies design professionals may consider employing to mitigate submittal-related risks. 

I. Submittals, Generally 

Submittals consist of information a contractor provides to a design professional for approval of materials and equipment before their fabrication and incorporation into a construction project. Submittals take on various forms/formats including, but not limited to shop drawings, product data sheets, and material samples. Contract documents for a construction project often include language obligating a contractor to prepare and provide a submittal schedule to the design professional. Once approved, the submittal schedule operates to identify components of the project requiring a submittal and indicating when submittals are to be sent to, and reviewed by, the design professional. American Institute of Architects (“AIA”) document A201–2017 (“A201”), one of the most (if not the most) common form of general conditions used in the construction contracting space, requires that: “[the] Contractor [] prepare and keep current, for the Architect’s approval, a schedule of submittals which is coordinated with the Contractor’s construction schedule and allows the Architect reasonable time to review submittals.” A201 § 3.10.2. 

Once the design professional receives the submittal schedule, they will review it to  determine whether it includes the required equipment and materials and confirm the schedule affords the design professional an appropriate amount of time to review the submittals. If the design professional has concerns about the submittal schedule, the design professional should return it to the contractor and request the schedule be revised appropriately.  

The time within which a design professional must respond to submittals varies by project. Sometimes, a project’s contract documents will require the design professional to respond to submittals within a specified number of days; AIA, however, takes a less rigid approach in the A201, providing that “[t]he Architect’s action will be taken in accordance with the submittal schedule approved by the Architect or, in the absence of an approved submittal schedule, with reasonable promptness while allowing sufficient time in the Architect’s professional judgment to permit adequate review.” A201 § 4.2.7. If a contractor fails to follow the submittal schedule, late submittals can pile up and interfere with the orderly flow of construction, with the design professional facing pressure to hastily review submittals – or forego review altogether – in an attempt to help the project get out from behind the proverbial 8-ball. To avoid getting stuck in this high-risk situation, where a design professional’s review of submittals is inadequate or nonexistent, the design professional must ensure they effectively communicate with the contractor, especially where difficulty in the flow of submittals is encountered. 

II. Design Professionals’ Review of Submittals

A design professional should understand why they are reviewing submittals. AIA document B101–2017 (“B101”) addresses the design professional’s submittal-related responsibilities as follows:  

The Architect shall review and approve, or take other appropriate action upon, the Contractor’s submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. Review of such submittals is not for the purpose of determining the accuracy and completeness of other information such as dimensions, quantities and installation or performance of equipment or systems, which are the Contractor’s responsibility. The Architect’s review shall not constitute approval of safety precautions or construction means, methods, techniques, sequences or procedures. The Architect’s approval of a specific item shall not indicate approval of an assembly of which the item is a component. 

B101 § 3.6.4.2. 

A design professional formally responds to a contractor’s submittal vis-à-vis their submittal stamp. Design professionals’ insurers generally recommend such stamps closely track language appearing in Section 3.6.4.2 of AIA document B101—some even recommend that stamps include additional disclaimers going above and beyond those found in B101. However, while a robust submittal stamp is a helpful tool in the diligent design professional’s toolbox, it should not be seen as an impenetrable shield against submittal-related liability. Some commentators in the construction law space have gone so far as to suggest that fixating on including a plethora of “weasel words” in one’s submittal stamp is a poor use of time. 5 Philip L. Bruner, Patrick J. O’Connor, Bruner & O’Connor on Construction Law § 17:61 (Aug. 2023 update).  

The prudent design professional will diligently review a contractor’s submittals and (clearly and timely) report any information contained therein which such design professional knows is not in conformance with the project’s contract documents. If a design professional does not devote the requisite level of attention and effort to submittal process, disaster can result. In Duncan v. Missouri Board for Architects, a failure of communication between an engineer and a contractor during the submittal process led to the collapse of a suspended walkway at the Hyatt Regency in Kansas City, Missouri. 744 S.W.2d 524 (Mo. Ct. App. 1988). The engineer was found to have acted with gross negligence in approving the contractor’s submittals standing at odds with the engineer’s design for the project’s suspended walkway without reviewing such submittals or performing calculations to ascertain compliance with code requirements or viability from an engineering standpoint. Id. at 528–30. An investigation conducted following the walkway’s collapse concluded the contractor-proposed walkway suspension method, which the engineer acquiesced to by approving the related submittals, was to blame. Id. at 530. 

III. General Strategies for Limiting Submittal-Related Liability 

To avoid unnecessary liability exposure, design professionals should take steps to ensure that their agreements with project owners and other relevant documentation addresses their submittal-related responsibilities in reasonable and understandable fashion, since design professionals’ contractual obligations are generally afforded more weight than even the ‘best’ of submittal stamps. 5 Philip L. Bruner, Patrick J. O’Connor, Bruner & O’Connor on Construction Law § 17:61 (Aug. 2023 update). To hedge against being held liable for submittal-related delays, design professionals should only agree to assume responsibilities which they can actually meet and do not threaten the availability of their professional liability insurance (e.g., language purporting to make a design professional ‘automatically’ responsible for a contractor’s extended general conditions or other delay-related costs/damages). The time needed for coordination with engineers or other subconsultants should also be considered. A design professional should resist representations regarding compliance of contractor-provided information with laws, such information’s accuracy or completeness, or such contractor’s construction means or methods. A design professional may further limit their liability by ensuring they respond only to submittals  provided to them by the contractor which were specified in the project contract documents by them or their subconsultants; a design professional reviews submittals flagged as being the responsibility of other (separate) design professionals does so at its peril.      

IV. Conclusion 

This author hopes this article serves to inform (or remind) design professionals about the importance of properly addressing their submittal-related responsibilities in agreements with owners, submittal stamps, general conditions (e.g., AIA document A201) and any other documentation for a project addressing such duties. That being said, a design professional’s strategy for submittal liability avoidance should be formulated on a project-by-project basis and cannot be boiled down to a list of universal bullet points; this article is in no way intended to serve as legal advice or otherwise construed as a comprehensive approach to handling potential risks associated with submittals.