Vol. 4 No. 6		June 1985

The controversy is over. For years, some professional liability insurers have warned against the "approval" of shop drawings. They feared your "approval" would eventually be construed to be a confirmation of the accuracy of every detail of the contractor's work. Others argued the risk was remote. They cited the fact that not a single appellate decision in the United States had ever turned on the "approval" of shop drawings. They concluded that changing long-standing practices and time-tested, standard forms of agreement was unwarranted.

Unfortunately, this is no longer so. In several cases in recent years, the courts have focused their attention on the contractual obligation to review and "approve" shop drawings. In at least one, the responsibility conveyed by that obligation was a principal issue before the court.(fn1) The outcome confirmed the fears of those who have urged that your contract language, your shop drawing stamps, and your actions clearly and consistently reflect the limited level of responsibility you intend to assume.

Two workers were seriously injured on a construction site when a steel stairway collapsed. The original specifications included 10-gauge steel landing pads and angle supports. The shop drawings called for 14-gauge landing pads. The angle supports were omitted.

The architect, working under an AIA owner-architect agreement, reviewed the shop drawings and returned them stamped, "Furnish as Submitted." The stamp included this disclaimer: "Review is for general conformance with the design concept only; any deviations from the plans or specifications not clearly noted have not been reviewed. Review does not constitute a complete check of detailed dimensions, nor does it relieve the contractor of responsibility for errors or deviations from the construction contract."

In finding for the injured workers against the architect, the court ignored the disclaimer. It relied, instead, on the architect's contractual obligation to "...review and approve...the Contractor's submittals...for conformance with the design concept and with the information given in the Contract Documents." The court held that the architect had negligently failed to meet this obligation. A 14-gauge steel pan, as "approved," was clearly not in compliance with the contract documents.

Part of the problem rests with the fact that, in spite of the efforts of the AIA and the Engineers' Joint Contract Documents Committee, there is no clear definition of responsibility for shop drawings—nor is there a consistent standard of practice. There is work to be done at the Association level. Your immediate problem, however, is to decide what to do in the meantime.

If your intent is to review shop drawings, samples, and product data only for general conformance with the design concept and the construction contract documents (and not to verify quantities, dimensions, fabrication processes, and construction techniques), it makes no sense for you to agree to review shop drawings for anything more than that general conformance. Nor does it make sense for you to agree to "approve" the contractor's submittals.

Many architects and engineers have heeded this warning and, like HDR, have gone to some lengths to modify their shop drawing stamps and transmittal forms. They have eliminated the word, "approve," and they have incorporated language onto their stamps intended to clarify the limited purpose of their review.

But they continue to sign agreements with their clients which require that self-same "approval," and they hand over General Conditions which communicate to the contractor that they are going to do precisely that. Small wonder expectations begin to diverge from honest intentions, or that juries and appellate judges have a difficult time sorting out who is responsible for what.

One thing the HDR case makes clear is this: It is not enough to change your shop drawing stamp and transmittal form. If your agreement calls for you to "approve" the contractor's submittals for compliance with the plans and specifications, merely returning those submittals and allowing the work to proceed is likely to be seen as "approval" on your part. Should something later go wrong because of an error in the contractor's documents, you may find yourself responsible for having "approved" that error.

If you do not intend to assume responsibility for the contractor's calculations, details, and dimensions, do not agree to review and "approve" shop drawings for their unqualified compliance with the construction contract. You may have to re-evaluate the language in the agreements you sign. Subject to your own standards of practice and to review by your attorney, here is one approach that might more clearly reflect the limitations on your willingness to assume responsibility for the contractor's performance:

Once you have introduced this change, make certain the General Conditions are consistent with it. This will not eliminate the problem, for there will always be room for confusion and disagreement over where the contractor's responsibility ends and yours begins. What it can do, however, is eliminate a good deal of the ambiguity that presently exists. At the very least, it may strengthen your communications with both your client and the contractor as to what reasonably can be expected of you during the course of the work.

(fn1) Jaeger v. Henningson, Durham & Richardson, Inc., 714 F.2d 773 (8th Cir. 1983).