Submittals BY, MICHAEL J. CREMONESE* I. What’s at stake? When making delay claims, contractors often assert that the design professional failed to provide timely review of shop drawings and other submittals. For this reason, it is important that your submittal review process be well‐managed from an in‐house organizational perspective. II. Key issues Most contract documents require design firms to provide timely reviews of contractor submittals. Yet this may be difficult when a contactor splits up the submittals, fails to prepare a submittal schedule, or fails to comply with the terms of the submittal schedule. You can face substantial liabilities if your contract provides that a specific turnaround time must be met for all submittal reviews and you fail to meet the applicable deadlines. A contractor may make a delay claim against you based upon the extra number of days it takes you to complete the submittal reviews. III. Negotiating points In order to avoid this situation, negotiate which submittals are critical and the turnaround time that applies to each. Furthermore, you can negotiate to “cap” the maximum number of submittals that you must process in any given month. Require that the contractor put forward a submittal schedule that you can review and approve. The contractor should be obligated to coordinate the submittal schedule with the project schedule, allowing appropriate time for any necessary re‐submittals. IV. Risk management considerations When confronted with submittals that are late or out of sequence, document the issue immediately. Note the number of days the submittal is late; or for out of sequence submittals, identify the other submittals required for appropriate review. Advise the contractor that out‐of‐sequence submittals cannot be approved or rejected until all relevant submittals are received. The documentation of late or out‐of‐sequence submittals should be sent to the client. Include in the documentation a submittal log noting the dates that the submittals were received, the date the submittal review was completed, and the disposition of the review. This log will be vital for defending the timeliness of your responses to the contractor’s submittals in the event the contractor files a delay claim based on yours alleged untimely responses in reviewing the submittals. * Michael J. Cremonese joined the law firm of Burns, White & Hickton in 2000 as an Associate in the Pittsburgh, Pennsylvania office. Mr. Cremonese concentrates his practice in the areas of commercial and construction litigation and general corporate and commercial law. In the construction field, he focuses on representing the business and litigation needs of clients from the beginning of a project through post‐project claims. travelers.com/1stchoice Travelers Casualty and Surety Company of America and its property casualty affiliates. One Tower Square, Hartford, CT 06183 The views expressed in this article are those of the author and do not necessarily reflect the views of The Travelers Companies, Inc. or any of its subsidiary insurance companies (“Travelers”). This paper is for general informational purposes only. None of it constitutes legal advice, nor is it intended to create any attorney‐client relationship between you and the author. You should not act or rely on this information concerning the meaning, interpretation, or effect of particular contractual language or the resolution of any particular demand, claim, or suit without seeking the advice of your own attorney. © 2013 The Travelers Indemnity Company. All rights reserved. Travelers and the Travelers Umbrella logo are registered trademarks of the Travelers Indemnity Company in the U.S. and other countries. Ed. 11‐13 ®
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