Shop drawing review is intended to confirm conformance with the Contract Documents—not to impose new design requirements through the submittal process. When a design professional uses “revise and resubmit” to require work not shown in the contract documents, the review may cross the line from ordinary submittal administration into a compensable change with potential schedule consequences.

Construction contracts commonly require shop drawings to illustrate in detail, for specified parts of the work, “how the contractor proposes to conform to the information given and the design concept expressed in the Contract Documents”. Usually prepared by a subcontractor or a fabricator, the contractor submits shop drawings or other submittals to the owner’s design team for confirmation that what is proposed conforms to the general project design as reflected in the contract plans and specifications. 

Typically, approved shop drawings do not become contract documents, and their approval does not excuse the contractor from complying with contract requirements. By the same token, reviewers are generally not authorized to use the submittal review process to modify or add to those requirements. When they do, the resulting rejection can affect both the cost of the work and the project schedule. 

Where shop drawing review is required, the contractor generally may not proceed with that portion of the work until approval has been secured. Courts have held that unreasonable delays in approving shop drawings can rise to the level of an owner breach, making the owner liable for resulting delay-related costs. Many owners attempt to manage that exposure through “no damage for delay” clauses that limit or bar recovery for delays caused by extended shop drawing review. In New York, however, a no-damage-for-delay clause is enforceable only to the extent that the particular delay-causing event was reasonably foreseeable at bid time. Unforeseeable delays may fall outside the clause, particularly where the delay can also be characterized as resulting from the owner’s breach of a fundamental contractual obligation.

Not all shop drawing delays are treated alike. Delay caused by the designer’s workload or inattention has been found to be foreseeable—and therefore non-compensable—where a no-damage-for-delay clause expressly addresses shop drawing review. The analysis changes, however, when shop drawings are returned “revise and resubmit” not because they fail to conform to the Contract Documents, but because the designer seeks to impose new or changed design requirements.

That distinction matters because most contracts specify that design changes may be made only by change order, field order, or construction change directive. At the same time, standard contract forms limit shop drawing review to conformance with existing Contract Documents. They do not authorize rejection merely because the contractor’s submittal failed to anticipate an unissued change or later design preference. 

The standard AIA and EJCDC provisions are useful because they describe the limited purpose of submittal review. For example, the 2017 version of AIA’s Standard General Conditions, Form A201, provides at § 3.12.4:

Shop Drawings, Product Data, Samples, and similar submittals are not Contract Documents. Their purpose is to demonstrate how the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents for those portions of the Work for which the Contract Documents require submittals. Review by the Architect is subject to the limitations of Section 4.2.7.

Section 4.2.7, in turn provides that such review is “only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents.”

Similarly, EJCDC’s C700 Section 7.16(C)(1) provides:

Engineer’s review and approval [of Submittals, including shop drawings] will be only to determine if the terms covered by the Submittals will, after installation or incorporation in the Work comply with the requirements of the Contract Documents, and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. [Emphasis added.]

In this common contract setting, a contractor may be able to argue that it could not reasonably foresee a designer’s misuse of the shop drawing review process to change or “refine” the requirements of the Contract Documents. If supported by the opinion of an independent expert, that argument may support recovery for both the design change itself and the schedule impact of delayed approval, despite the presence of a no-damage-for-delay clause.

Preserving the Claim

As with any delay claim, the contractor must still prove that the improper shop drawing rejection affected the project’s critical path—or at least pushed a portion of the work into adverse weather conditions. The contractor must also address whether it or its vendor materially contributed to the delay, whether there were concurrent delays for which the owner was not responsible, whether required notices were timely given, and whether time extensions were properly requested. When a submittal is rejected for reasons outside the Contract Documents, the contractor should promptly document the changed requirement, reserve its rights, provide contractually required notice, evaluate schedule impact, and consult counsel before the claim is impaired by delay, waiver, or lack of proof.

Anthony J. Adams, Jr. is a partner with Adams Leclair LLP.  He focuses his practice on construction law and litigation.  He can be reached at aadams@adamsleclair.law