Approved Submittals Are Not Necessarily Contract Documents
By Neil Wilcove


It is all too common on construction projects for architects or design team members to simply respond to subcontractor submittals with an approval.  When a subcontractor issues submittals for review by architect or design team members, it is in their interest to review them carefully.

Many times during the process an “approved submittal” will actually change something that is contained in the construction documents, i.e., the plans and specifications.  While the subcontractor may believe that the submittal response is the final word on the architect’s intent, it is important to note that prior to performing any work related to a submittal response, the subcontractor should obtain a change order from the general contractor/construction manager to perform the work.  Even if there is no cost or time impact to the subcontractor, if an approved submittal changes the contract documents, it is best to obtain a change order.

One might think that, with all of the submittals issued on a project, that it would be too time consuming to send a change order request each and every time a submittal approval might change a construction document.  For instance, many times, what is submitted is what the architect actually requested to be submitted.  While the practicalities of what transpires on a construction project makes it difficult to do that, one must be made aware of the potential issues when problems with the work arise.  As a general rule, submittals are not construction documents.  While a subcontractor might believe approval is all that is needed, the fact is that the subcontractor is required to build what is part of the contract documents, not an approved submittal.  If the approved submittal deviates from the contract documents, the subcontractor can be held liable for any issues that arise due to the subcontractor not complying with contract documents.  If litigation ensues over work performed by a subcontractor, and, in particular, the scope of work that was supposed to be performed pursuant to the contract documents; without a valid change order incorporating the changes from the submittal approval, the subcontractor could be liable for any damages resulting from the submittal approval.  Likewise, a general contractor could also be held responsible from deviating from the contract documents if it does not obtain a change order for the approved submittal (assuming that the submittal deviates from the contract documents).  

In sum, be careful when obtaining any approval from the project architect that deviates from the contract documents.  Failure to obtain formal approval through the change order process could subject you to liability in the event of litigation related to your work.  While it is obvious to all on the project site that the contractor (or subs) are performing work pursuant to the directives given by the project architect, be cognizant of the fact that if problems arise, proper documentation can be the difference between winning or losing in court.

For more information, contact Neil Wilcove at 770.818.1430 or [email protected] within our Construction Law Practice Group.

 



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