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American Bar Association Forum on the Construction Industry

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“I Don’t See It That Way!” Common Mistakes Lawyers Make In Reading and

Interpreting Design Documents

Bill Quatman, FAIA, Esq. Burns & McDonnell Engineering Co.

Kansas City, MO

Sue Yoakum, AIA, Esq. Donovan Hatem LLP

Boston, MA

Presented at the 2010 Fall Meeting

We Won’t Get Fooled Again: Lessons Learned From the Economic Downturn

September 2-3, 2010 Loews Miami Beach Hotel, Miami Beach, Florida

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©2010 American Bar Association

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“A great matter is architecture, nor can everyone undertake it. He must be of the greatest ability, the keenest enthusiasm, the highest learning, the widest experience, and, above all, serious, of sound judgment and counsel, who would presume to call himself an architect.”

- Leon Basttista Alberti On the Art of Building in Ten Books (1450 A.D.)

I. The Evolution of Building Design.

A. From Caveman to CAD.

From the first Stone Age caveman who drew a line in the dirt, humans have been

designing the built environment. And sometimes those designs have contained errors or

omissions that have resulted in leaks, cracks, settling and structural collapses of “Biblical

proportions.” Architectural design reached its artistic peak, some believe, during the

Italian Renaissance period (1400-1600) when architects and artists were one and the

same, such as Florence’s pair of contemporaries Filippo Brunelleschi and Leon Battista

Alberti, the latter known as “the father of modern architecture;” to the artist/architects

Leonardo Da Vinci and Michelangelo. Then, as the “New World” and the Colonies began

to develop, the art of architecture was separated from the craft of the technical drawing

and we had “carpenter-architects” who drew standard details in the 1700’s. This period

was followed by the post-Civil War era’s first formal schools of architecture (MIT,

founded in 1865, and University of Illinois, founded in 1867), and people found

themselves in careers as “draftsmen.”

In the early 1980’s computer technology gave us the Computer Assisted Design

(or “CAD”), which expedited the drafting process, but even further removed the artist’s

sketchpad and replaced it with a keyboard and mouse. The design process has advanced

rapidly -- taking a cue from aerospace engineering -- to today’s Building Information

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Modeling (or “BIM”), where buildings are shaped in a 3-D virtual world before the first

nail is driven.

While technology has advanced the speed at which we can design buildings and

other structures, the “human element” is still present in the CAD operator, the BIM

model host, and the detail designer. Despite advances in technology and over a thousand

years of experience, errors and omissions can still occur in the modern era due to

oversight or neglect of the individual architect or engineer who is responsible to draw,

click, drag or paste information into whatever media is being used to communicate design

intent to a contractor.

B. No Perfect Set of Plans.

Every set of plans has errors and omissions. This is nothing new. Design errors

and omissions are as old as the pyramids. Hammurabi’s code, written in ancient Babylon

about 1790 B.C., addressed the penalty for a builder whose structure failed. It was “strict

liability”, and death to the builder and his son, depending on the fatalities from the

collapse.1 The Old Testament is likewise full of references to the collapse of ancient

walls and houses.2 Even Christ used a poorly designed building as an analogy for a faith

based on an inadequate foundation, which would collapse and be destroyed when tested

by a storm.3

In more modern times, we have the example of the “Leaning Tower” in Pisa,

Italy, built in the 12th Century. The wonderfully detailed campanile, or bell tower,

behind the cathedral Pisa is not famous for its classical Corinthian capitals or its articulate

bell-chamber -- it is known for its structural design defect. Craftsmen and masons

worked for over 170 years to build the tower, spanning generations. However, foundation

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design and improper soils investigation resulted in settlement that tilted the 183-foot

tower by almost 4 degrees. Any modern building would have been torn down due to such

deficiency; but the tower in Pisa stands as a reminder that design errors have always been

with us.

Plans, specifications and shop drawings play a key role in the construction

process. Contractors and subcontractors who bid on construction projects rely on the

architect/engineer’s plans and specifications as being sufficiently detailed and complete

so that accurate bids, shop drawings, material submittals, and project schedules can be

prepared. The public and owners rely on the integrity of the design of buildings and

other structures for shelter and safety.

Nonetheless, in absence of some express guaranty, the law does not hold

architects and engineers to a standard of perfection. As was held in Klein v. Catalano, a

Supreme Court of Massachusetts case from 1982:

As a general rule, an architect's efficiency in preparing plans and specifications is tested by the rule of ordinary and reasonable skill usually exercised by one of that profession . . . In the absence of a special agreement he does not imply or guarantee a perfect plan or satisfactory result.4

The Massachusetts Supreme Court explained that, just like doctors and attorneys,

design professionals are continually called upon to exercise their skilled judgment “in

order to anticipate and provide for random factors which are incapable of precise

measurement.” The court continued that, “[b]ecause of the inescapable possibility of

error which inheres in these services, the law has traditionally required, not perfect results

. . . [U]nlike a manufacturer, an architect does not impliedly guarantee that his work is fit

for its intended purpose.”5

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The normal errors or ambiguities in project plans or specifications, as well as in

shop drawings and submittals, can give rise to unanticipated construction costs and

project delays for which owners and/or contractors seek to be reimbursed. Likewise,

delays in the shop drawing preparation and review process can result in claims for time

extensions and for additional money.

Claims are not at all uncommon since the “perfect” set of plans and specifications

has probably never been created, nor has the “perfect” project been built. While outside

forces, such as differing site conditions, contractor error, market instabilities, force

majeure, or owner naiveté of the design and construction process, can contribute to

problems with buildings, it is sometimes just a flat design error. As Alberti said in 1450:

Of the faults in both public and private buildings, some are integral and inherent, as it were, and the responsibility of the architect, while others result from some outside influence . . . But not all faults produced by outside influence are irremediable; nor does every mistake made by the architect allow some remedy. . . If a building cannot be improved without changing every line, the best remedy is demolition, to make way for something new. 6 Change orders are a normal part of the construction process and owners routinely

include “contingency” funds in the project budget to handle design changes and

unanticipated conditions encountered during construction. Architecture and engineering

are recognized by the courts as “inexact sciences”7 and, therefore, errors and omissions

are to be expected to some extent. Architects and engineers are not required to be

perfect, nor are their documents required to be flawless. Instead, they are required to

exercise “reasonable” care and skill in the preparation of plans and specifications. 8

In a 1991 survey conducted by Engineering News Record magazine, over 84% of

contractors said that project specifications “often or generally have major omissions.”9

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That survey showed that contractors ranked the most frequent reasons for modifications

as:

1) ambiguity;

2) design consultant error;

3) conflict between specs and other contract documents; and,

4) owner changes.

The results of the survey are confirmation that there is no perfect set of plans.

II. Overview of How to Read a Set of Plans (Architecture 101)

A. Guides on Document Organization.

Two books that continue as great resources for reading and understanding

architectural plans are the “Architectural Graphic Standards” and “The Architect’s

Handbook of Professional Practice.” The Architectural Graphics Standards is published

by John Wiley & Sons, Inc. and the AIA.10 This book, now in its eleventh edition, has

been published since 1932. Architectural Graphic Standards, considered to be the

“Architect’s Bible”, contains over 8,500 architectural illustrations and is considered the

industry’s leading graphic reference. The AIA Handbook of Professional Practice is

published by John Wiley & Sons, Inc. and the AIA.11 The AIA Handbook, now in its

fourteenth edition, has been published since 1920 and is widely recognized as the leading

resource on architectural practice. The AIA Handbook has been admitted into evidence

by courts and arbitrators as evidence of the standard of care.12

The AIA Handbook refers to a system of organization for drawings called

“ConDoc”. which was developed in the late 1980’s by two architects to standardize a

uniform arrangement of drawings.13 This led to an even more detailed system called the

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Uniform Drawing System (UDS) developed by the Construction Specification Institute

and published in 1997. The AIA itself published CAD Layer Guidelines in 1990, updated

and revised in 2001 as the U.S. National CAD Standard, Version 2.14 There are also two

more standards for organization of architectural drawings published by The National

Institute of Building Sciences (NIBS), one for CAD and another for BIM.15

For organization of specifications, the two leading standards are the AIA’s

MASTERSPEC®, and CSI’s MasterFormat® 2010. Where in the past, there were only

sixteen divisions of specifications, the new AIA guide has fifty divisions and while CSI

still has sixteen divisions, it uses multiple subparts. Suffice it to say that an explanation

of these guidelines are beyond the scope of this paper.

B. Typical Sheet Organization.

Plans are organized starting with sheets containing information relating to: 1)

building site, civil engineer and landscape architect’s documents; 2) the building,

architectural documents; 3) structural systems, structural engineer’s documents; 4)

mechanical, plumbing, and electrical engineer’s documents; and for some projects; 5)

specialty consultant’s documents. Most design teams consist of multiple design

consultants who each prepare their own documents and specifications and stamp and seal

their documents. The architect, in its contract with the owner, typically agrees to deliver

a design that includes the “usual and customary structural, mechanical, and electrical

engineering services.” AIA B101 Par. 3.1 (2007 edition).

The first sheet in any set of plans is the Title Sheet which contains information

relating the project, the owner and the design team. The first series of plans in the set are

civil or landscape sheets typically designated with the letter “C” or “L” and numbered

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sequentially starting with “C-1” and “L-1.” The second series of plans are the

architectural drawings typically designated with the letter “A” and numbered sequentially

starting with “A-1.” The third series of plans are the structural drawings typically

designated with the letter “S” and numbered sequentially starting with “S-1.” The fourth

series of plans are the mechanical drawings typically designated with the letter “M” and

numbered sequentially starting with “M-1”. The fifth series of plans are the plumbing

drawings typically designated with the letter “P” and numbered sequentially starting with

“P-1”. The sixth series of plans are the electrical drawings typically designated with the

letter “E” and numbered sequentially starting with “E-1”. The next series of plans can

include specialty design consultants such as food service, fire protection and

telecommunication. Of course, this organization of a set of plans may vary from project

to project depending on the architectural and engineering teams working on the project.

Within any given set of plans for each design discipline, the drawings are

organized from general plan information to elevations, sections, enlarged plans, enlarged

sections and finally details. Plans are prepared from the “bird’s eye” view cutting the

building at approximately five to six feet above each floor. Overall building plans are

typically drawn with north at the top of the sheet. These sheets will contain a north arrow

symbol for orientation.

Reflected ceiling plans are drawn from the viewpoint of laying on the floor and

looking at the ceiling. Exterior elevations are drawn from the viewpoint of looking

directly at each exterior side of the building and drawing the building as a “flat” drawing.

Interior elevations are drawn from the viewpoint of looking directly at each interior wall

and drawing interior walls that illustrate design features or typically demonstrating

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interior information. Building sections and wall sections are drawn by cutting the

building along a line and the line is selected to relay important design information.

Enlarged plans and elevations are selected to give additional critical design

information and drawn at large scale in order to illustrate this additional information.

Details are also selected to relay information on a typical and unique level and again

drawn at a large scale in order to illustrate this additional information and referenced

back to the larger plans and elevation.

Symbols are used to understand where plans, elevations, sections and details are

cut and how they reference back to the larger plans and elevations drawings. Symbols

are used to illustrate various pieces and parts of the building and to relay information

about the design. There are a large variety of symbols used in any set of plans from north

arrows, to section cuts, to detail references. Each design firm may have unique symbols

they prefer to use in the preparation of their documents, however, symbols are trending

towards becoming more standardized.

Each sheet will contain a title block listing the design professionals involved on

the project, the date of the document release, an area for the various design professionals

to stamp and seal their respective documents, and sheet numbers. The title blocks are

typically created by the architect and/or prime design professional and distributed to the

design team to use on their sheets. Within each sheet and various drawings there are

symbols that assist the reader in understanding how this enlarged plan, section or

elevation relates to the project.

Some contract documents will have legend or general note sheets that can be used

to understand typical design information. Other contract documents may include this

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information on each sheet as needed. There is really no set approach and each design

team can agree how they will include this information.

The purpose of the contract documents is to include enough information relating

to the design to enable the contractor to prepare costs, schedules, and shop drawings, and

to build the project. Conflicts, errors and omissions in the contract documents confuse

the contractor and do not provide clear understanding of the design direction. The two

dimensional (“2D”), world of plans, elevations, sections and details has limitations on the

ability to relay the design intent. Some project participants, most often the owner, cannot

read and understand 2D drawings. A three dimensional (“3D”) drawing or model can

better relay design intent because it is much easier to orient and understand a 3D versus a

2D drawing. With the advent of computers, 3D drawings are the preferred drawing type

to easily communicate design intent. Recently, the design and build industry began

embracing Building Information Modeling as the preferred 3D modeling tool.

III. Building Information Modeling (BIM) The BIM revolution allows the designer the ability to draw their design as a 3D

model that is intelligent and includes design information beyond that contained in the

lines that make up a drawing. In a BIM model, “attributes” are typically attached to the

drawing objects to assist in explaining the design. These attributes contain specific

design criteria, including cut sheets containing design criteria and specification sections.

This type of “at your finger tips” information has never been as readily accessible as it is

with BIM.

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A. What is BIM?

BIM is a tool used by architects, engineers, contractors and subcontractors to

prepare plans and shop drawings. The National Institute of Building Sciences describes

BIM this way:

A Building Information Model, or BIM, utilizes cutting edge digital technology to establish a computable representation of all the physical and functional characteristics of a facility and its related project/life-cycle information, and is intended to be a repository of information for the facility owner/operator to use and maintain throughout the life-cycle of a facility.16 B. How is BIM Used?

BIM is not new. It is only a new tool in the design and build industry. Other

industries, such as the aerospace and automotive industries, have used BIM for decades.

BIM modeling allows the project participants to better understand the design and to make

informed decisions relating to the design, cost and scheduling. Contractors and

subcontractors can use the 4-D (scheduling) and 5-D (cost estimating) aspects of the BIM

software to produce movie type critical path models and accurate costs estimates.

There were many early BIM articles that anticipated and envisioned one model

that all project participants would collaborate on together to develop a central model. In

discussions with many design and construction professionals, the idea of one central

model is false. The design model is typically utilized by the contractors and

subcontractors only as a reference, with the contractors and subcontractors creating their

own models that input and extract information from the construction viewpoint. In

addition, software and hardware restrictions limit working efficiently in one model. The

models simply contain too much information, and therefore, for most projects the idea of

one model cannot be realized with today’s technology.

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C. Some BIM Project Examples.

Several stadium projects have been successfully delivered with BIM. Specific

projects include two new professional baseball stadiums: the Washington Nationals

ballpark, which opened in March, 2008, and the $1.3 billion Yankee Stadium, which

opened in April, 2009, as well as the dual-team $998 million Meadowlands Stadium in

New Jersey, which will host the New York Jets and Giants beginning with the 2010

football season.17 These projects teams utilized BIM for visualizing design and

fabrication, detecting clashes, ordering steel, creating bills of materials, and expediting

schedule. The project participants stated that “sharing a building information model has

been a ‘win-win’ for the whole project team.” 18

D. BIM Benefits.

BIM allows design professionals to create a library of objects that are created as

3D objects with technical information attached and ready to insert in the model, thereby

allowing the information to show up automatically in plan, elevation and section views.

For example, a typical loading dock can be drawn in the library and ready to insert in

various drawings on various projects. The loading dock object contains generic

information relating to typical loading docks, including attributes that contain

information concerning specific loading dock criteria and specification sections. These

BIM libraries can assist in quickly understanding all the elements of a particular design

feature such as loading docks.

Shop drawing BIM models, created by the contractor and its subcontractors,

contain specific information relating to the products selected to be installed in the project.

For example, with the loading dock example above, the shop drawing will include the

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specific loading dock to be installed at the project. This loading dock may or may not be

dimensionally the same as shown on the design documents, but more then likely, will

vary from the loading dock illustrated on the contract documents. The design

professionals review these BIM shop models for design intent, as well as for relationship

to and coordination with other shop models. The real benefit of BIM is when all

participants use the BIM tool to draw their respective drawings. This allows a review of

the project in the BIM shop model review, but only if all shop drawings are prepared in

BIM.

E. Use of the BIM Model to Create 2D Contract Documents.

The 2D drawings are extracted from the BIM models and arranged on drawing

sheets. Typically, wall sections and details can be extracted from the BIM model, but

require additional hand-drawn information to enable a complete understanding of the

design intent.

F. BIM is Here to Stay.

BIM is a powerful drawing tool and is here to stay. Many design and construction

firms that use BIM to create their documents and drawings on a project cannot imagine

participating on a project without the benefit of BIM. BIM allows all participants a better

understanding of the design. As a result, cost estimates and construction schedules can

be prepared more efficiently.

BIM will not create a “perfect” model. There will be errors and omissions in BIM

models; therefore, coordination of the contract documents and shop drawings is still a

concern. It is, however, much easier to understand 3D models and to identify “clashes”

within the contract documents and shop drawings when BIM is used to prepare the

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drawings. It is much harder to read and identify potential "clashes" on two dimensional

plans, elevations and sections.

The "clashes", or errors and omissions, in the contract documents occur where

two or more objects occupy the same space and a decision must be made regarding which

objects trump the others and get to occupy the space. Typically "clashes", whether on

BIM projects or projects not using BIM, are not identified during the design phase, but

instead are identified through Requests For Information (“RFIs”) and,change orders

which can impact costs and schedule and are often the center of attention in claims and/or

lawsuits. The BIM tool allows for the reduction of errors and omissions in the contract

documents and shop drawings and allows the project participants to “see” the project in

the same way.

IV. Shop Drawings.

Shop drawings are a controversial area for design professionals. Federal contract

provisions define “shop drawings” in FAR 52.236-21(d) as “drawings, submitted to the

Government by the Contractor, subcontractor, or any lower tier subcontractor pursuant to

a construction contract, showing in detail, (1) the proposed fabrication and assembly of

structural elements, and, (2) the installation (i.e., fit, and attachment details) of materials

or equipment.”19 These documents are the fabricator’s set of documents and the

documents that are used in the construction of the project. Shop drawings are prepared

by others, not under the architect’s supervision, but are, by custom and by contract,

reviewed by the architect and “approved” for fabrication and for construction. The level

of review varies depending on the complexity of the submittal and the practice of the

reviewing professional. Some engineers do a complete check of each weld symbol,

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measurement and calculation, while other professionals only do a cursory review.

Several courts have found design professionals liable for negligent shop drawing

review.20

Shop drawing review and approval has been debated around the country,

especially since the collapse of the Hyatt skywalks in Kansas City in 1981 and the

resultant litigation. A review of this issue starts with understanding the purpose of shop

drawings.

A. Purpose of Shop Drawings.

Contrary to some beliefs, architects and engineers do not design each and every

component of the project. Some items are manufactured products, such as elevators,

cooling towers, toilet partitions, light fixtures, windows, etc., and some items are

specified as design-build by the contractor, such as fire sprinkler systems, curtain walls,

wood trusses, and precast panels. With manufactured products, the design professional

selects and specifies a particular model, make, color, and size appropriate for the project.

The contractor is then required to submit information verifying that a specific product

will be supplied that meets the design criteria. Still other building components are

custom fabricated for the project, such as millwork, fritted glass, and structural steel.

Rather than design each aspect of these components, the detailing is left up to

others -- typically the fabricator itself --, who are more familiar with the dimensions and

assembly processes of thr components. The fabricator’s drawings are then given to the

fabrication shop for use in making each component, thus the name “shop drawing.”

Under AIA form documents, the submittal process requires that the fabricator’s

drawings are first submitted to the contractor, who is to review "and approve” the shop

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drawing. The contractor’s approval represents that the materials have been verified, field

measurements taken, and field criteria checked and coordinated with the requirements of

the Contract Documents. AIA A201 Par. 3.12.6 (2007 edition). The approved shop

drawing is then submitted to the architect, or its consulting engineers, for review. The

architect’s review and approval is to check “conformance with information given and the

design concept expressed in the Contract Documents.” AIA A201 Par. 4.2.7 (2007

edition). When the shop drawing is returned “approved” by the architect, the contractor

can begin fabrication. Since delayed reviews can hold up fabrication, design

professionals need to act promptly on submittals, keeping a log of the date received, the

action taken, and the date returned to the contractor. The AIA publishes a form, AIA

Doc. No. G712 (1972 edition), to use in logging in shop drawings and other submittals.

B. Liability for Negligent Review and Approval of Submittals.

One court has stated that, “shop drawings are the final word as to how the work

should proceed on the job, and supersede the architectural plans.”21 Given the

importance of shop drawings, negligent review and approval by the design professional

may result in liability, depending on the facts and the contractual duties of the reviewing

professional.

The meaning of architect approval was discussed in a 1977 Nebraska case where

the specifications called for “solid wood doors”, but the contractor supplied “particle

board doors”. The court held that the architect’s approval of the shop drawing did not

sanction the use of nonconforming doors. The contract language defining the architect’s

“approval” was a key factor in the court holding that the contractor was not entitled to

additional compensation for replacing the doors.22 Under the AIA form documents, the

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contractor is not relieved of responsibility for deviations from the contract requirements

by virtue of the architect’s approval of shop drawings and submittals, unless the

contractor has: 1) specifically informed the architect in writing of the deviation; 2) the

architect has given written approval of the specific deviation; and, if a cost change is

involved, 3) a change order has been issued. AIA A201, par. 3.12.8 (2007 edition). The

same clause also states that the contractor is liable for errors and omissions in shop

drawings despite approval by the architect.

In the absence of such a contract clause, a design professional may be held liable

for negligent review and approval of a shop drawing. In Jaeger v. Henningson, Durham

& Richardson, 714 F.2d 773 (8th Cir. 1983), the specifications called for use of 10 gauge

steel on a stair landing. Shop drawings were submitted which called for thinner 14 gauge

steel and were approved by the architect. The landing pan was fabricated of 14 gauge

steel and collapsed when two workers stepped onto it to perform welding. The architect

was found negligent and held liable for injuries to the workers. In a follow up case, the

architect then sued the contractor for indemnity for submitting the defective shop

drawing. The court denied the indemnity claim, however, based on a South Dakota “anti-

indemnity” statute.23

By contrast, in Lutz Engineering Co. v. Industrial Louvers, Inc., 585 A.2d 631

(R.I. 1991), the court found that the project architect/engineer owed no duty to a

subcontractor based on the contract shop drawing language. The architect’s duty was

owed only to the general contractor, not to the subcontractor.

Where the submittal contains information relating to the means and methods of

construction, AIA-type contract language may shield the design professional from

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liability. For example, in a 1982 Oklahoma case, an architect was found not liable for the

deaths of two workers and the injury of another allegedly caused by negligent approval of

shop drawings for steel erection.24 The court held that under the AIA General Conditions

the contractor, not the architect, was responsible for temporary field connections and for

the means and methods of construction.

C. No Action Taken.

A design professional’s failure to take action on a submittal does not necessarily

mean “approval.” That very issue came up in a 1946 Missouri case.25 In that case, the

specifications provided that the contractor should furnish shop drawings when required

by the specifications, but that no shop drawings should be submitted except as required.

It was further stated that shop drawings submitted without being required would be

returned “without action.” The tile section of the specifications made no provision for

shop drawings. Nonetheless, the tile supplier sent shop drawings to the subcontractor

who made corrections and forwarded the drawings to the general contractor.

The contractor then submitted the shop drawings to the owner (the government).

The owner returned the shop drawings with the notation, “Shop drawings are not required

for this work; however, contract requirements should be followed in all cases.” When the

subcontractor started to install the tile presuming approval of the submittal, the owner’s

engineer stopped the work and directed that different “bull nose” tile be used as required

by the specifications. As a result, the subcontractor sued the general contractor for

additional compensation. In denying recovery, the court pointed out that silence doesn’t

necessarily mean “acceptance.” The court stated that,

The fallacy of [the subcontractor’s] contention regarding shop drawings lies in their assumption that the damages they sustained resulted from

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failure of the [owner] or [the contractor] to approve or disapprove the shop drawings submitted. When the drawings were returned, [the subcontractors] were warned that the contract requirements should be followed.

. . . In view of the above facts and the further fact that the shop drawings originally submitted to [subcontractor], and before they were corrected by them, provided for general use of [the proper tile type], we cannot say that failure to approve or disapprove the shop drawings misled [subcontractor]. Furthermore, the specifications did not require shop drawings, and when the [owner] returned those submitted with the notation attached, it was not for [the general contractor] to assume to approve them.26

Under the AIA A201 General Conditions (2007 edition), architects are given the

right to request certain “informational” submittals without the need to approve those

documents. Paragraph 3.12.4 states that,

Informational submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract Documents.

Contractors should not assume that the absence of action on such submittals means

“approval.” Design professionals who use such clauses should add a “no action taken”

box to the shop drawing review stamp, noting that the contractor should follow the

contract requirements.

D. The Hyatt Skywalk Case.

No single case has had the dramatic effect on the construction industry as that

involving the collapse of the Hyatt skywalks in 1981 during which 114 people were

killed and over 180 more were injured. In the wake of this disaster, the industry engaged

in a decade of review of the entire process of shop drawings and design delegation. The

personal injury and wrongful death cases were mostly settled out of court. The Missouri

licensing board held months of hearings and ultimately, disciplinary action was taken

against the structural engineers who designed the skywalks. The administrative law

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judge who conducted the hearings issued a lengthy 442-page opinion in which he found

violations of the state licensing laws sufficient to permanently revoke the licenses of two

engineers, as well as the Certificate of Authority of the engineering firm. The engineers

appealed the Board’s action.27

In affirming, the Court of Appeals held that although, by custom, the structural

engineer elected to have the steel fabricator design the steel connections, this did not

relieve the engineer of responsibility for the design of those connections. The Court

stated that under the Missouri licensing statute, once an engineer seals the design for a

project, he becomes responsible for the “whole engineering project” unless he disclaims

liability as permitted by statute.28 Absent such a disclaimer, the engineer is not relieved

of responsibility for engineering decisions made by fabricators. The Court found that

the reviewing engineer was aware of a design change made by the steel fabricator

(switching a single rod suspension system to a double rod design for ease of fabrication);

however, the engineer did not review the hanger connection proposed for the double rod

design despite representing to the architects that a review had been done. The Court

found that such conduct was a willful act with wrongful intention, constituting “gross

negligence” by a professional. The Court stated that, “[s]hop drawing review by the

engineer is contractually required, universally accepted and always done as part of the

design engineer’s responsibility.”

E. The AIA Shop Drawing Clauses.

As a result of the post-Hyatt litigation and industry awareness of risks associated

with the shop drawing review process, the 1987 edition of the AIA General Conditions

greatly expanded the coverage of this topic. The 1997 and 2007 editions carry forward

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the expanded language, but add a potentially dangerous twist. Paragraph 3.12 and its ten

subsections detail the shop drawing process. Paragraph 3.12.7 states that the contractor is

not to perform work which requires a shop drawing “until the respective submittal has

been approved by the Architect.” Since the contractor must wait on architect approval,

there is a potential for project delay caused by inaction in the approval process. The

architect has a duty to take action on shop drawings “with such reasonable promptness as

to cause no delay in the Work . . . while allowing sufficient time in the Architect’s

professional judgment to permit adequate review.” AIA A201 par. 4.2.7 (2007 edition).

The time for review of shop drawings should be established in the contractor’s

schedule of submittals, which is “coordinated with the Contractor’s construction schedule

and allows the Architect reasonable time to review submittals.” AIA A201 par. 3.10.2

(2007 edition). Any submittals not approved in a timely manner should be brought to the

architect/engineer’s attention, especially those relating to long lead-time components of

the Project.

The expanded language of A201’s shop drawing review clause, paragraph 4.2.7,

includes at least four disclaimers of what the architect’s approval “is not.” The new twist

relates to design-build components of the project, such as items required by a

“performance specification”, or sprinkler systems, curtain walls, precast or other building

components to be designed by the contractor. Paragraph 3.12.10 of the 2007 A201

General Conditions requires the contractor to submit shop drawings signed and sealed by

a licensed design professional for such work. The clause goes on to state that, “[t]he

Owner and Architect shall be entitled to rely upon the adequacy, accuracy and

completeness of the services . . . by such design professionals.” Time will tell whether

22

delegation of design to the contractor is a cost effective procedure or an invitation for

disaster. Maybe we haven’t learned much from the Hyatt collapse after all.

F. Shop Drawing Stamps.

There is a wide variety of wording used on shop drawing stamps. During the

mid-1980’s, there was a push to avoid using the word “approved” on shop drawing

stamps. Design professionals thought, or were advised, that if they avoided using the

“A” word during their review, they might not have liability for action taken by them on

submittals. Phrases such as “reviewed”, “no exceptions noted”, “authorized to proceed”,

and the like became common. In fact, one of the major professional liability insurers

required their insureds to use “reviewed” on their stamps. Despite this, time has shown

that the courts still equate the review and passage of judgment by the design professional

with “approval”, regardless of the wording used on the stamp.

Interestingly, the AIA’s Handbook of Professional Practice contained a

recommended stamp until the 2008 edition which recommended that the word

“approved” be used by both the contractor and architect. The AIA’s "recommended"

stamp as published in 1994 had these four boxes as choices29:

________________________________________________________________________

APPROVED Fabrication/installation may be undertaken. Approval does not authorize changes in the Contract Sum or Contract Time.

APPROVED AS CORRECTED _________________________________________________________________ REVISE AND RESUBMIT Fabrication/installation MAY NOT be undertaken. In

resubmitting, limit corrections to the items marked.

23

REJECTED _________________________________________________________________ Review/approval neither extends nor alters any contractual obligations of the Architect or Contractor.

FIRM NAME

By _____________________________ Date _____________________

________________________________________________________________________

For those wanting more comfort, and a really big stamp, the AIA also had a longer

version with a 142 word disclaimer at the bottom.

The AIA contracts state that the architect is to “review and approve, or take other

appropriate action” (i.e. reject, require revision, etc.). As a result, the courts find that

"review" equals "approval". In the opinion of the Administrative Law Judge issued in the

Hyatt case, he observed that,

Although the contract documents require that shop and erection drawings be submitted to the engineer of record for “review and approval”, testimony at trial indicates that engineers never use the term “approved” when indicating review and approval of these drawings. This custom apparently rests upon the dubious basis that most engineers’ insurance carriers have directed that the word “approve” not be used.30

The judge went on to note that although the steel shop drawings did not indicate

“approval”, based upon all the evidence, the “Commission finds that the 'review stamp' of

the structural engineer of record on the Hyatt project, placed on shop and erection

drawings, functionally indicates both review and approval of such drawings.”

Specific definitions within the contracts may, however, deflect liability from the

design professional. For example, in a 1995 Virginia case, the court held that the

engineer’s stamp which stated that “review does not relieve the contractor from

complying with all requirements of the contract documents” meant that the contractor

was liable for the failure of certain post-tensioning components and that the engineer’s

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approval did not waive the original contract requirements.31 As a result, the contractor,,

not the owner, was liable for the error.

G. Industry Changes.

The post-Hyatt fallout continues to affect the industry today.32 In October 1985,,

the American Society of Civil Engineers (ASCE) published its Final Report and

Recommendations on Assignment of Authority & Responsibility for Design of Steel

Structures. Many state licensing boards have since restricted the practice of design

delegation, while others have authorized it. New York has been a particular hot-bed of

activity surrounding the delegation of design responsibility to contractors. In late 1996,

building contractors and steel fabricators filed suit in New York to challenge a state

agency rule that allowed the principal designer to delegate design responsibility through

unlicensed contractors to secondary licensed designers.33

As mentioned above, the 1997 and 2007 AIA documents allow the architect to

delegate design responsibility to the contractor. AIA A201 par. 3.12.10 (2007 edition).

The key concern, regardless of who performs the design, is to make sure that the client

gets a quality building and that the public is safe. Shop drawing review cannot be based

upon disclaimers and avoidance. Since these are the drawings actually used to build

from, careful review is required by a licensed professional familiar with the project.

VI. Legal Issues in Interpreting Design Documents.

A. “Contract Documents.”

The phrase “contract documents” is widely used in the construction industry to

include not only the signed contract between the parties, but a host of other documents,

drawings, specifications, reports, surveys, exhibits, and conditions. All of these pieces of

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information make up the construction contract. Most are not attached to the contract, but

are merely mentioned and incorporated by reference. What may escape immediate

attention is that the drawings and specifications are as much a part of the contract as the

payment or dispute clauses.

1. Not Just the Agreements and General Conditions.

As one New York court stated, “[i]n the context of the performance of a

construction contract, the term ‘contract documents’ generally refers to ‘architectural

plans, drawings, surveys, specifications, engineering reports, change orders, and the like

... applicable to the work to be performed.’” 34 Standard AIA General Conditions define

the contract documents as:

the Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract, other documents listed in the Agreement and Modifications issued after execution of the Contract.

AIA A201, Par. 1.1.1 (2007 edition). The AIA contracts then go on to explain that, “[t]he

Contract Documents form the Contract for Construction” and that the “Work means the

construction and services required by the Contract Documents.” AIA A201, Par. 1.1.2

and 1.1.3 (2007 edition). Therefore, the contract documents are the essence of the

agreement, forming the contract and describing all work to be performed.

2. Specs Equal to Drawings.

Under the AIA forms, there is no priority given as between the terms of the

written agreement, the drawings, or the specifications. AIA’s A201 General Conditions

states only that, “[t]he Contract Documents are complementary, and what is required by

one shall be as binding as if required by all,” which from a legal perspective puts the

drawings and specifications on equal footing. AIA A201 Par. 1.2.1 (2007 edition).

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2. What if in Conflict?

If there is a conflict with the numerous contract documents, and there often is,

how is this to be resolved? Under the AIA forms, conflicting documents would be

submitted to the architect for interpretations, as in a “request for information”. AIA A201,

Par. 4.2.11 and 4.2.12 (2007 edition). The architect will then respond to such written

request with a decision that is to be, “consistent with the intent of, and reasonably

inferable from, the Contract Documents,” and will be impartial and issued in “good

faith”. If either party disagrees with the architect’s interpretation, the intent appears to be

that the matter becomes a “dispute” which is then submitted back to the architect as the

Initial Decision Maker (or IDM) for a second bite at the apple. Failure to resolve the issue

at that stage leads to mediation and arbitration. AIA A201, Article 15 (2007 edition).

B. Ambiguities in Plans and Specs.

A contract is ambiguous if it is susceptible of two different and reasonable

interpretations, each of which is found to be consistent with the contract language.35

Stated otherwise, “where, from the four corners of the contract, the terms are susceptible

of more than one meaning so that reasonable persons may fairly and honestly differ in

their construction of the terms.”36 If the language of the contract is unambiguous, then

words “are to be given their plain and ordinary meaning.”37 Since plans and

specifications are incorporated into the construction contract by reference, they are

subject to the same rules of interpretation as the terms of the agreement itself. Courts

have held that whether a plan or specification is ambiguous is a question of law for the

court to decide.38 The rules of interpretation can be summarized in the following

sections:

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1. Construed Against the Drafter.

Once a contract is found to be ambiguous, legal rules of contract construction

provide that the ambiguity is to be construed against the drafter. As one state Supreme

Court has stated,

A basic principle in the construction of contracts is that an ambiguity in the language of the contract will be strictly construed against the party who drafted the provision.39

The rationale for this rule is that, “doubtful and uncertain language in a contract is

construed against the party preparing the contract, for he has created the troublesome

ambiguity.”40 When that “drafter” is an architect or engineer who has prepared

documents for use by the project owner in obtaining bids, courts generally construe

ambiguities against the owner.

2. Application of Rules to Construction Documents.

Many courts have applied these rules of contract construction to bid documents,

holding that the documents are to be construed in favor of a contractor’s reasonable

interpretation against the owner. The construction case often cited is Blount Brothers

Construction Co. v. United States, 346 F.2d 962 (Ct. Cl. 1965), in which the

government’s plans and specifications for certain concrete work were in conflict. The

court laid out certain rules for dealing with ambiguities created by conflicts between

plans and specifications. Those include,

a. A contractor’s interpretation of the documents will be adopted if within the “zone of reasonableness”;

b. Contractors have a duty to inquire and to seek a clarification as to a

“patent” ambiguity; c. Contractors are not expected to seek clarification of hidden (“latent”)

ambiguities; and,

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d. Ambiguities in contracts drawn by the government are construed against

the drafter.41

The rule of law that any ambiguity is construed most strongly against the party

who drafted the specification is known as the rule of “contra proferentem.”42 The

rationale for the rule is that,

it puts the risk of ambiguity, lack of clarity, and the absence of proper warning on the drafting party which could have forestalled the controversy; it pushes the drafters toward improving contractual forms; and it saves contractors from hidden traps not of their own making.43

Many courts have stated that any ambiguity in a contract must be resolved most strongly

against the party who prepared it.44 The idea is that the drafting party has the

responsibility to make the contract terms clear, and if he fails to do so, the other party’s

reasonable interpretation will control. This rule applies equally to the plans and

specifications which become a part of the contract and the contract documents.

Since the owner provides and furnishes the plans and specifications to the

contractor, the owner is deemed to be the party who “drafted” the documents. If the

plans and specifications are ambiguous, the courts will construe the documents in favor

of the contractor’s interpretation -- if reasonable -- and against the owner’s. The

contractor need not show that his interpretation is the best, only that it is within the “zone

of reasonableness.”45 For example, in Neal & Co., Inc. v. U.S., 945 F.2d 385 (Fed. Cir.

1991) the contractor claimed that government specifications for shipping certain precast

concrete elements were ambiguous. The court agreed, holding that,

The Government’s interpretation is not unreasonable, but neither is the interpretation put upon it by [the contractor] and by the trial judge. If the Government wants a particular interpretation to be made of a contract provision, it can write the provision to make that meaning clear.46

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The contractor was awarded the extra costs incurred for shipping.

3. Patent vs. Latent Ambiguities.

Court cases hold that a “patent ambiguity” is one that is recognized as “an

obvious omission, inconsistency, or discrepancy of significance.”47 A “latent ambiguity”,

by contrast, exists when the ambiguity is “neither glaring nor substantial nor patently

obvious.”48

When a conflict of interpretation is presented, the meaning of the words included

in a contract is determined by a two-step process. The Court must first determine

whether an ambiguity exists. If an ambiguity is immediately apparent, it is a “patent” or

obvious ambiguity, and the contractor is under a duty to seek clarification. If a contractor

does not inquire about a clearly patent ambiguity, the ambiguity will be construed against

the contractor, not the drafter.

4. The Zone of Reasonableness.

Far-fetched interpretations of the documents will not be allowed. The

contractor’s interpretation of an ambiguous provision or detail must be within the “zone

of reasonableness.”49 “The Government, as the author, has to shoulder the major task of

seeing that within the zone of reasonableness the words of the agreement communicate

the proper notions . . .”50 A party seeking to have its interpretation adopted must

demonstrate that it actually and reasonably relied upon that interpretation when it entered

into the contract.51

5. Contract Authority of A/E To Interpret.

One way to resolve contract ambiguities is to designate an official interpreter of

the documents. Some construction contracts provide that a third party, usually the

30

architect or engineer has the final authority to determine the meaning or interpretation of

the plans and specifications. These clauses are generally upheld and the design

professional’s decision is conclusive in the absence of fraud or gross mistake. These

provisions have been held to give a third party (such as an architect) the power to resolve

any ambiguities in the specifications.52

C. Contractor’s Review of Documents.

The AIA’s A201 General Conditions are also structured to defer the initial

decision of ambiguities in the documents to the architect. Under § 3.2.1, the contractor is

to carefully study the contract documents before starting any work, and to report any

errors, inconsistencies, or omissions discovered to the architect with a request for

interpretation. §3.2.2 further states that the contractor’s review is made “in the

Contractor’s capacity as a contractor and not as a licensed design professional” and that

the contractor is not responsible to determine if the design is in compliance with building

codes and regulations, though any discovered errors are to be reported. By failing to

report noted errors and proceeding with the work, the contractor becomes liable to the

owner for any costs and damages that would have been avoided had the error been

reported. AIA A201 Par. 3.2.4 (2007 edition).

This concept is not new. Courts have adhered to these same rules for many years.

In 1931, a New York court held that a contractor who is bound to follow fixed plans and

specifications “owes the duty to examine such plans and judge of their sufficiency; that

he is bound to discover defects that are reasonably discoverable or patent; and, where he

knows or had reason to believe that the plans are defective, and follows them without

pointing out such defects to the owner or architect, he is not entitled to recover if the

31

building proves insufficient because of such defects.”53 Stated another way by an Indiana

court, the contractor is required, “to utilize his expertise and to notify even an architect of

reasonably discovered defects.”54

D. Superfluous Specifications or Details.

One cause of errors or ambiguities in contract documents is the re-use of details or

specifications from Project A to Project B. Without proper review, additional details or

requirements can be included in the contract documents which have no application to the

current project. In one such case involving a federal prison, the drawings contained a

“legend” with notes and graphic symbols for portions of the work. Note 9 said: “New

Manhole For Primary Service. See Detail 1/E–5”; however, the detail on sheet E-5 was

for a “pull box” not necessarily for a manhole; and the electrical site plan on sheet E-1

showed no Note 9 symbols for new manholes. Instead, the site plan erroneously referred

to Note 6 in four places. The contractor assumed no manholes were required, but did not

seek any clarification prior to submitting its bid. The Board of Contract Appeals found

that there was no ambiguity and that the plans did not require installation of any

manholes. In reaching its conclusion, the Board stated that,

[A]rchitect-engineers do not prepare perfect plan and specifications. No one expects them to do so. They often do contain errors, one of the more common of which is for plans and specifications to contain superfluous language, language which may at one time during the birth pangs of the project have related to a proposed feature, which feature was subsequently deleted. Therefore, a contractor should not be expected to run to the Contracting Officer every time a lack of perfection is uncovered; the obligation to inquire arises only if there is an ambiguity.55

The Board reasoned that if the mistake in the plans is relatively minor, a bidder

might not catch it and may ignore it altogether. Despite the reference to “manhole” in the

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drawing legend, the Board found this language in the solicitation merely “superfluous”.

All this for a claim totaling less than $6,000.

E. Contract Clauses.

Clever lawyers have figured out ways to put order into the chaos of interpreting

contract documents. Courts generally uphold bargained-for contract allocations of risk,

absent special legislation which prohibits certain clauses. Construction lawyers need to

check the state in which the project is located for any “fairness in contracting” statutes

which have been passed nationwide in the past decade to prevent onerous contract

clauses from being forced onto weaker parties by those with the upper hand in

negotiations.

1. Order of Precedence Clauses.

Though it may not be possible to entirely avoid ambiguities, it is possible to

minimize them by providing a way to resolve them in the contract. In one construction

case, the court held that provisions of a construction contract will generally control in the

event of a conflict with the specifications, but where the contract and general conditions

of the specifications contain clauses on the same issue, the court will try to harmonize the

provisions and construe them together.56 Rather than leave the resolution and

interpretation of conflicting provisions to a court, most contract documents contain a

“precedence clause” in either the general conditions or specifications. A typical

precedence clause reads:

Drawings, Specifications, General and Supplementary Conditions are essential parts of the Contract, and a requirement occurring in one is as binding as though occurring in all. They are intended to be complementary and to describe and provide for a complete work. In the event of any discrepancy between the drawing and figures written thereon, the figures, unless obviously incorrect, are to govern over scaled

33

dimensions. In the case of any discrepancy between the Drawings and the Specifications, the Specifications are to govern. If there is a discrepancy between large and small scale details, the larger scale details are to govern. Special provisions shall govern over Specifications, Drawings and General Conditions.

The standard federal contract provision for Specifications and Drawings for Construction,

FAR 52.236-21, states, in part, as follows:

In case of difference between drawings and specifications, the specifications shall govern. In case of discrepancy in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the Contracting Officer, who shall promptly make a determination in writing.57

Courts have dealt with the effect of such clauses. For example, in 1967 the Eighth

Circuit evaluated a precedence clause which provided that special provisions took

precedence and governed in the event of a conflict with the standard specifications.58

The Court found that special provisions provided for a fixed price contract, and that the

precedence clause was enforceable. In another case it was held that a provision stating

that HUD contract provisions took precedence over AIA General Conditions eliminated

any conflict.59

The following are sample precedence clauses used by the City of Los Angeles,

Department of Public Works, in their Standard General Conditions (2007 edition):

00204 PLANS AND SPECIFICATIONS (9/18/07) As shown on the Plans or described in the Specifications, each element of the Work must be furnished complete, finished and functional. Whether shown or not, include all materials and ancillary equipment necessary to provide a complete installation. The Plans, Specifications and other Contract Documents are intended to be complementary and cooperative to describe and provide for a complete project. Anything in the Specifications and not on the Plans, or on the Plans and not in the Specifications, shall be as though shown or mentioned in both. Details

34

shown for an item of Work are typical and shall apply to similar items of Work. The Engineer does not warrant the accuracy of scaled dimensions. Dimensions indicated by figures or numerals shall govern. Larger scale drawings shall take precedence over smaller scale drawings. Detailed drawings will take precedence over general drawings. 00205 PRECEDENCE OF CONTRACT DOCUMENTS (9/18/07) In resolving inconsistencies or ambiguities among two (2) or more components of the Contract Documents, the more stringent requirements shall prevail. The secondary priority will be based upon the precedence of the documents. The precedence shall be: . . . [then follows a list of 13 documents in order of priority]. Supplemental Agreements, Change Orders, Engineer’s written interpretations and clarifications, and Addenda, will take precedence over all other components of the Contract Documents.

There are as many ways to write these clauses as there are practicing lawyers, but the

basic premise is always the same (i.e. to establish some order or priority in the event of

conflicts).

2. Incorporation by Reference.

Construction documents would be several feet thick if every technical reference,

ASTM, and federal regulation applicable to the project was attached. To avoid this,

almost all contracts and specifications incorporate other documents by reference. Courts

have held that, “matters incorporated into a contract by reference are as much a part of

the contract as if they had been set out in the contract in haec verba [meaning in full].”

Jim Carlson Const., Inc. v. Bailey, 769 S.W.2d 481 (Mo. App. W.D. 1989)(finding the

AIA General Conditions were incorporated by reference into the contract by reference).

Owners will often incorporate their own custom-drafted general conditions into the

contract with the design professional.

35

Since documents which are incorporated by reference become a part of the

contract, it is important for the parties to review all refernced documents prior to signing

the contract, to ensure nothing objectionable is included within the general conditions,

supplementary conditions, or other documents incorporated into the contract. Failure to

read all such referenced documents can result in unknown conditions sneaking into the

contract. As one court has stated, “[c]ontracting parties have a duty to learn the contents

of a written contract before signing it, and such duty includes reading the contract and

obtaining an explanation of its terms.”60 In that case, the court added that a party who

signs a contract is bound by its provisions regardless of whether he reads or understands

it terms.

E. The Spearin Doctrine.

While we have seen that design professionals are not held to a standard of

perfection and do not warrant their plans as perfect, the law is different as between an

owner and a contractor. Federal courts have held that on public projects, when a

contractor bids on a set of plans and specifications, the government warrants the

adequacy of the design specifications, and if such specifications are deficient, it is the

government that bears the risk, not the contractor.61 There are numerous cases across the

country dealing with the issue of whether a contractor can rely on the plans and

specifications provided by the owner.62

Most of these cases cite the “Spearin doctrine” as derived from the U.S. Supreme

Court’s landmark decision in U.S. v. Spearin, 248 U.S 132 (1918). The Spearin doctrine

holds, generally, that when the owner furnishes detailed specifications to a contractor, the

owner is deemed to impliedly warrant that those plans and specifications are accurate and

36

suitable for their intended use. A majority of state jurisdictions recognize Spearin as

controlling law.63

The Spearin case held that, “if the contractor is bound to build according to plans

and specifications prepared by the owner, the contractor will not be responsible for the

consequences of defects in the plans and specifications.” Id., 248 U.S. at 136. The

Spearin court held that the owner’s implied warranty is not negated by a contractual

requirement providing that the contractor must examine the site and check the plans.. In

Spearin, the US Supreme Court stated that “[t]he duty to check plans did not impose the

obligation to pass upon their adequacy to accomplish the purpose in view.” Id. at 248.

1. Lower Courts’ Recognition of Spearin.

The Spearin doctrine has been recognized by multiple state courts.64 In a 1985

Missouri case, the court cited Spearin in holding that, “[g]enerally, when a contractor is

to construct a project according to another’s plans it does not insure that the plans are

sufficient to obtain the result sought. The contractor should be paid when it does what it

is required to do under the plans.”65 In other words, the contractor is not responsible for

design errors. This would be different, of course, if the contract passed design

responsibility to the contractor.

In Housing Authority v. E.W. Johnson Construction Co., Inc., 573 S.W.2d 316

(Ark. 1978), a contractor sued the project owner for breach of implied warranty of plans

and specifications which resulted in delay damage to the contractor. The Arkansas

Supreme Court held that, “We are persuaded that where, as here, the owner supplies

plans and specifications to a contractor detailing the work to be performed, the owner

37

implicitly warrants the adequacy and suitability of the plans and specifications for the

purpose for which they are tendered.”66

If there is a design error or omission, contractors often argue that they are not

responsible for the design, but only to build it as it is drawn. For example, in Teufel v.

Wiener, 411 P.2d 151 (Wash. 1966), the court dealt with the issue of whether a contractor

was liable for leaks in the curtain wall of a high rise building. The court found that the

problem was a design defect and ruled that, “if an item is installed in accordance with the

specifications [for that project], the contractor is not liable if the item’s failure to function

properly is due to its design being improper for the intended use.”67

2. Actual Knowledge of Design Defects.

As long as the contractor’s work meets the requirements of the specifications, and

the contractor had no knowledge of the defect, he will generally not be held responsible

for any damage caused by design error. However, if the contractor has actual knowledge

of a defect in the plans and specifications, and fails to raise that issue upon discovery, the

contractor cannot rely on the owner’s implied warranty. In some cases, withholding such

information can even amount to fraud. As stated in the E.W. Johnson case, above,

However, a competent and experienced contractor cannot rely upon submitted specifications and plans where he is fully aware, or should have been aware, that the plans and specifications cannot produce the proposed results.68

3. Express Warranty By Contractor.

An express warranty by the contractor as to the results to be achieved will

override the owner’s implied warranty. For example, in Home Furniture, Inc. v. Brunyell

Constr. Co., 440 P.2d 398, 401 (Nev. 1968), the court stated, “[t]he law is well settled in

practically every American jurisdiction that, where a contractor has followed the plans

38

and specifications furnished by the owner and his architect, he will not be responsible to

the owner, at least after the work is completed, for any loss or damage which results

solely from the defects or insufficient plans or specifications, in the absence of any

negligence on the part of the contractor or any express warranty by him as to their being

sufficient or free from defects.”69

The Tenth Circuit Court of Appeals has held that a contractor's “acquies[ence] in

the use of a particular material or system” and guarantee of his work does not make the

contractor a guarantor of the design. “The person who designs the structure is

responsible for insufficiencies in the effectiveness for the purpose intended.”70

4. Duty to Warn of Defects.

Some courts have found that contractors have a “duty to warn” when they have

reason to believe that the plans are defective. The contractor cannot proceed with

construction with such knowledge and then make a claim for damages later as a result.

The contractor has a duty to warn in order to protect himself from liability for

deficiencies caused by such defects.71 In one such case, Lewis v. Anchorage Asphalt

Paving Co., 535 P.2d 1188 (Alaska 1975), a paving contractor placed asphalt paving on

unsuitable soil. The contractor argued that he had no duty to warn of the soil condition;

however, the court ruled that,

this duty to inform the owner, regardless of his personal expertise, of potential defects in his project which come to the contractor’s knowledge or should come to his knowledge, is an essential element of performing any contract in a workmanlike manner according to acceptable standards.

The court went on to state that a contractor has no duty to warn of defects unless they are

likely to cause a failure in the contractor’s work and are of such a nature as to place the

39

contractor on notice of their existence. In other words, a contractor cannot “sandbag” the

owner, by holding back on knowledge of a defect in order to make a claim later.

5. Contractor’s Duty to Investigate.

As to whether the contractor has a duty to investigate the compatibility of

materials or the adequacy of the design, there are various cases reaching different

decisions depending on the contracts, the nature of the error, and the contractor’s

expertise. For example, in Our Lady of Victory College v. Maxwell Steel Co., 278

S.W.2d 321 (Tex. App. 1955), a tower collapsed when the contractor installed a new steel

tank on top of it. The court held that the contractor was not liable for damages because

the work had been completed according to the plans. The court further held that, “[i]t is

immaterial that [the contractor] may have known more about the carrying capacity of

towers than did [the owner].”

In W.H. Lyman Construction Co. v. Village of Gurnee, 403 N.E.2d 1325, 1332

(Ill. App. 2d Dist. 1980), the court held that the contractor’s duty is to perform his part of

the contract in a workmanlike manner, not to evaluate the suitability of the specifications

or, in the language of Spearin, “to pass upon their adequacy to accomplish the purpose in

view.” The Illinois court held that the contractor had a duty to build in accordance with

the plans and specifications and that the owner impliedly warranted their adequacy.

In light of the Spearin doctrine, a contractor has no common law duty to analyze

the specifications for design adequacy. If however, in reviewing the plans and

specifications for bidding, the contractor notices a design defect as a result of his

specialized background, he cannot close his eyes to the defect, but must instead notify the

architect or engineer before proceeding. The duty to warn comes about only when the

40

contractor has, or should have, knowledge of defects in the design. Stated another way,

“the contractor is required to bring his expertise into play and to notify even an architect

(expert) of reasonably discovered defects.”72

F. Risk Shifting Clauses.

There are contractual methods to shift the risk of design errors or omissions away

from the owner or design professional, including those based upon the Spearin doctrine.

One recent 2007 Ohio case held that a contractor could not rely upon the Spearin doctrine

to assert a claim of implied warranty in the plans since the contract contained a no-

damages-for-delay clause. The Ohio Supreme Court held that, “[i]n order to hold in favor

of Dugan & Meyers, we would need, first, to find that the state had implicitly warranted

that its plans were buildable, accurate, and complete, and, second, to hold that the implied

warranty prevails over express contractual provisions.”73 A dissenting judge argued that

Spearin was applicable because, “the principal cause of the delay, as determined by the

finder of fact, was an excessive number of errors, omissions and conflicts in the design

documents furnished to bidders by the state . . . There were no shifting sands, no acts of

God, no surprising aquifers. As in Spearin, the designs themselves were the root of the

problem.” 74

The following is an example of a risk-shifting clause used by the City of Los

Angeles, Department of Public Works, in its Standard General Conditions (2007 edition).

This clause purports to make the contractor review all plans and specifications for errors

and notify the engineer, and to waive claims if the contractor fails to give notice:

00303 FAMILIARITY WITH PLANS AND SPECIFICATIONS (9/18/07) It shall be the responsibility of the Contractor to be thoroughly familiar with all details of the Project, including the work of the Contractor’s

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forces and all Subcontractors. The Contractor shall call the following to the attention of both the Engineer and the Inspector in writing within twenty-four (24) hours of discovery, before any Work is performed: 1) Errors and omissions in the Plans and Specifications, including, but not limited to, code violations, typographical errors and notational errors where ambiguity or inadequate description exists; 2) Work on the Plans or in the Specifications which, if so constructed, would result in a conflict or interference with other Work or the Work of other trades, including the location of fixtures and equipment; 3) Existing improvements visible at the job site, for which no existing disposition is made on the Plans or in the Specifications but which could reasonably be assumed to interfere with the satisfactory completion of the improvements contemplated by the Plans and Specifications. Failure to notify shall constitute a waiver by the Contractor of any claim for delay or other damages occasioned by such defect. If the Contractor proceeds with the Work without instructions from the Engineer, the incorrect Work shall be removed and corrections made to comply with the Engineer’s instructions, at no cost to the City.

V. Conclusion. While it helps to have an undergraduate degree in architecture or engineering to

understand and read plans and specifications, most experienced construction lawyers

learn through practice. Once you know how to read the symbols and section marks, a set

of blueprints reveals itself as a well-organized road map to the construction of a project.

But just as lawyers cannot guarantee that their contracts will be free of ambiguities,

design professionals cannot warrant that a set of documents will be free of imperfections.

Contract language can add clarity to the process; however, construction lawyers need to

be familiar with the wide body of case law that has developed over the past century to

address the daily conflicts, errors and omissions contained in contract documents. While

technology has come a long way since the days of Alberti and the “Leaning Tower,” at

the end of the day we rely on humans, who are imperfect and who will continue to

produce documents which contain some degree of flaws.

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Endnotes: 1 The Code of Hammurabi stated that, “If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then the builder shall be put to death.” Another variation of this added that, “ If the owner's son dies, then the builder's son shall be put to death.” 2 See, e.g., 1 Kings 20:30 (New International Version). (a wall collapsed in the city of Aphek, killing 27,000 people); Job 1:18-20 (New International Version). (a house collapsed when struck by a “mighty wind,” killing the sons and daughters of Job) 3 Luke 6:49 (New International Version). (“But the one who hears my words and does not put them into practice is like a man who built a house on the ground without a foundation. The moment the torrent struck that house, it collapsed and its destruction was complete.”) 4 Klein v. Catalano, 437 N.E.2d 514, 525 (Mass. 1982). 5 Id. 6 Leon Basttista Alberti, On the Art of Building in Ten Books, pp. 320-321 (The MIT Press, 1988). 7 See e.g., Chubb Group of Ins. Co. v. C.F. Murphy Assoc., Inc., 656 S.W. 766, 780 (Mo. App. 1983). 8 Stanley Consultants, Inc. v. H. Kalicak Constr. Co., 383 F. Supp. 315, 319 (E.D. Mo. 1974); Rowe v. Moss, 656 S.W.2d 318, 321-22 (Mo. App. 1983). 9 Engineering News Record, p. 24 (June 17, 1991). 10 Architectural Graphics Standards, The American Institute of Architects (Eleventh edition). 11 The Architect’s Handbook of Professional Practice, John Wiley & Sons, Inc. (2008 edition). 12 See, e.g, Ford Hull-Mar Nursing Home, Inc. v. Marr, Knapp, Crawfis & Assoc., Inc., 740 N.E.2d 729, 733 (Ohio App. 7 Dist. 2000); Taylor, Thon, Thompson & Peterson v. Cannaday, 749 P.2d 63, 66 (Mont. 1988). 13 The Architect’s Handbook, note 11, supra, p. 541. 14 Id. 15 http://www.nibs.org/index.php/resources/standards

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16 Robert Miller, “National BIM Standard Version 1, Part 1 – Out for Industry Review,” National Institute of Building Sciences. Retrieved February 20, 2009, from http://www.nibs.org/nbims.html. 17 Mike Squarzini, Mark Tamaro, Anjana Kadakia, Erleen Hatfield, and Tom Scarangello, “Changing the Way We Deliver Stadiums: Successes with the Washington Nationals, Yankees and Meadowlands Projects,” GoStructural.com, July 31, 2008. 18 Id.

19 FAR 52.236-21 - Specifications and Drawings for Construction (Feb 1997). 20 U.S. for Use of Los Angeles Testing Lab v. Rogers & Rogers, 161 F. Supp. 132 (S.D. Calif 1958) (concrete mix approved by architect, later found to be defective); Shoffner Industries, Inc. v. W.B. Lloyd Constr. Co., 257 S.W.2d 50 (N.C. App. 1979) (roof trusses collapsed after approved by architect); Detweiler Bros., Inc. v. John Graham & Co., 412 F. Supp. 416 (D.C. Wash. 1976) (steam pipes approved by architect, later rejected); Berkel & Co. Contractors, Inc. v. Providence Hospital, 454 S.2d 496 (Ala. 1984) (owner found to be responsible for architect’s negligent approval of concrete mix submitted by contractor, because architect is owner’s agent). 21 First National Bank of Akron v. Cann, 503 F.Supp. 419, 426 (N.D.Ohio 1980). 22 Fauss Construction, Inc. v. City of Hooper, 249 N.W.2d 478 (Neb. 1977). 23 Henningson, Durham & Richardson, Inc. v. Swift Bros. Constr. Co., 739 F.2d 1341 (8th Cir. 1984). 24 Waggoner v. W&W Steel Co., 657 P.2d 147 (Okla. 1982). 25 United States vs. Henke Construction Co., 157 F.2d 13 (8th Cir. 1946). 26 157 F.2d at 22. 27 Duncan v. Missouri Board for Architects, Professional Engineers and Land Surveyors, 744 S.W.2d 524 (Mo. App. 1988). 28 R.S.Mo. § 327.411 (note, this statute has since been revised). 29 The Architect’s Handbook of Professional Practice, section 3.92, John Wiley & Sons, Inc., p. 772 (1994 edition). 30 Case No. AR-84-0239, Hon. James A. Deutsch, Administrative Law Judge Opinion, State of Missouri, pp. 31-32, Nov. 15, 1985. 31 D.C. McClain, Inc. v. Arlington County, 452 S.E.2d 659 (Va. 1995).

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32 See, e.g. “In Hyatt’s wake, greater caution,” Engineering News Record, Sept. 27, 1984, pp. 10-11; “Liability on Shop Drawings Still Unresolved”, Engineering Times, Nov. 1993. 33 Engineering News Record, Oct. 21, 1996, p. 17. 34 FCI Group, Inc. v. City of New York, 54 A.D.3d 171, 176, 862 N.Y.S.2d 352, 355-356 (N.Y.A.D. 1 Dept. 2008). 35 Dodson Aviation v. Rollins, Burdick, et al., 807 P.2d 1319, 1323 (Kan. App. 1991); Community Heating & Plumbing Co., Inc. v. Kelso, 987 F.2d 1575, 1579 (Fed. Cir. 1993). 36 Lobo Painting, Inc. v. Lamb Const. Co., 231 S.W.3d 256, 258 (Mo. App. E.D. 2007); Central Security Mutual Ins. Co. v. DePinto, 681 P.2d 15, 17 (Kan. 1984). 37 Thanet Corp. v. U.S., 591 F.2d 629, 633 (Ct. Cl. 1979). 38 See, e.g. Honey v. Barnes Hospital, 708 S.W.2d 686, 694 (Mo. App. 1986); Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 754 P.2d 803 (Kan. 1988). 39 Central SecurityMutual Ins. Co., 681 P.2d at 17. 40 Foltz v. Begnoche, 565 P.2d 592, 597 (Kan. 1977); see also Shelter Mutual Insurance Co. v. Williams, 804 P.2d 1374, 1379 (Kan. 1991). 41 346 F. 2d at 972-973. 42 Newsom v. U.S., 676 F.2d 647, 649 (Ct. Cl. 1982); WPC Enterprises, Inc. v. U.S., 323 F.2d 874, 876-77 (Ct. Cl. 1963). 43 Sturm v. U.S., 421 F.2d 723, 727 (Ct. Cl. 1970). 44 Twin River Construction Co. v. Public Water District, 653 S.W.2d 682, 692 (Mo. App. 1983); Structural Systems, Inc. v. Hereford, 564 S.W.2d 62 (Mo. App. 1978). 45 WPC Enterprises, Inc., 323 F.2d 874, 876-77. 46 945 F. 2d at 390. 47 Beacon Const. Co. v. U.S., 314 F.2d 501, 504 (Ct. Cl. 1963). 48 Mountain Home Contractors v. U.S., 425 F.2d 1260, 1264 (Ct. Cl. 1970). 49 Interwest Const. v. Brown, 29 F.3d 611, 614 (Fed. Cir. 1994).

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50 WPC Enterprises, Inc., 323 F.2d at 877. 51 Randolph Engineering Co., v. U.S., 367 F.2d 425, 430 (Ct. Cl. 1966). A subcontractor’s reliance can be imputed to the prime contractor if the prime contractor can show that it reasonably relied on the subcontractor’s interpretation at the time of bidding. J.W. Bateson Co., Inc., VABCA No. 3482, 93-3 BCA 26,115. 52 Walnut Creek Elec. v. Reynolds Const. Co., 263 Cal.App.2d 511, 515, 69 Cal.Rptr. 667, 669 (Cal. App. 1968). 53 Rubin v. Coles, 253 N.Y.S. 808, 811 (City Ct. N.Y. 1931). 54 Luxurious Swimming Pools, Inc. v. Tepe, 379 N.E.2d 999, 995 (Ind. App. 3d Dist. 1978); see also, Allied Contractors, Inc. v. U.S., 381 F.2d 995, 1000 (Ct. Cl. 1967) (contractor who knows or should know of obvious error in plans or specifications must call error to owner’s attention). 55 Appeal of Mayer Construction Company, DOTCAB No. 1688, 1986 WL 19629 (D.O.T.C.A.B.). 56 Southwest Engineering Co. v. Reorganized School District R-9, 434 S.W.2d 743 (Mo. App. 1968).

57 FAR 52.236-21 - Specifications and Drawings for Construction (Feb 1997). 58 St. Louis Testing Laboratories, Inc. v. Mississippi Valley Structural Steel Co., 254 F. Supp. 47 (E.D. Mo. 1966), aff’d, 375 F.2d 565 (8th Cir. 1967). 59 McCarthy Brothers Construction Co. v. Pierce, 832 F.2d 463 (8th Cir. 1987). 60 Albers v. Nelson, 809 P.2d 1194 (Kan. 1991). 61 See, e.g. Big Chief Drilling Co. v. U.S., 26 Cl. Ct. 1276 (1992). 62 See, e.g., The Owner’s Warranty of the Plans and Specifications for a Construction Project, Pub. Contract L.J., Vol. 14, No. 2, p. 240 (Feb 1984). 63 Construction Drawings that Work – or Maybe Not? 3 Liberty U. L. Rev. 183, 191 (2009); Leaderman, The Spearin Doctrine: It Isn't What It Used To Be, 16:4 The Construction Lawyer (Oct. 1996). 64 See, e.g., Kansas Turnpike Auth. v. Abramson, 275 F.2d 711, 713 (10th Cir. 1960); Kelley v. Bank Bldg. & Equip. Corp., 453 F.2d 774, 777 (10th Cir. 1972); Miller v. City of Broken Arrow, 660 F.2d 450, 457 (10th Cir. 1981). 65 Sanders Company Plumbing & Heating, Inc. v. City of Independence, 694 S.W.2d 841, 848 (Mo. App. 1985).

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66 573 S.W. 2d at 322. 67 411 P. 2d at 154-55. 68 573 S.W.2d at 322 (emphasis added). 69 Accord, Kubby v. Crescent Steel, 466 P.2d 753, 754 (Ariz. 1970). (emphasis added). 70 Kelley v. Bank Building & Equip. Co., 453 F.2d 774, 779 (10th Cir. 1972), citing Spearin. 71 Nordin Constr. Co. v. City of Nome, 489 P.2d 455, 470 n. 26 (Alaska 1971). 72 Lewis v. Anchorage Asphalt Paving Co., 535 P.2d 1188, 1199 (Alaska 1975).

73 Dugan & Meyers Constr. Co., Inc. v. Ohio Dept. of Adm. Servs., 864 N.E.2d 68, 75 (Ohio 2007). 74 Id. at 79. Ohio enacted a law barring no-damages-for-delay clauses in 1998, which did not apply to this case. See Ohio Rev. Code Ann. § 4113.62 (C)(1).