DAN BUELOW: It's great to have you. So thanks for joining us today, Dale, and sharing your expertise and thoughts on this important topic. Dale was our special guest presenter for a recent Willis A&E webinar on the same topic titled "Why We No Longer Stamp Shop Drawings," which is the title of an AIA best practices article Dale authored over 10 years ago. This webinar of ours, in fact, broke a 15-year Willis A&E webinar attendance record, with over 1,000 registered attendees so we apparently struck a chord with this topic.
In fact, in addition to breaking an attendance record for that webinar with Dale on shop drawings, we also received an unprecedented number of questions during the program. So many in fact, we simply ran out of time and couldn't get to them all. So I thought it would be great to get Dale on a podcast, given the apparent interest in this topic, and break this podcast into two parts.
Part one today will be a review of the main issues and risks associated with shop drawing reviews as presented in our Willis A&E webinar with Dale. And for part two, I will be asking Dale to address a lot of those questions that were raised during and after our webinar. So let me tell you a little bit about Dale.
Dale Munhall, AIA, has been National Director of Construction Phase Services for LEO A DALY for the past 28 years. In his four-decade career, he has gained unique experience as an architect, construction manager, and field superintendent. His articles and presentations on project delivery have been published by the American Institute of Architecture, too, as AIA's best practices, by the Construction Owners' Association of America, COAA, and by the Design Build Institute of America, DBIA, with whom co-founded the Nebraska chapter DBIA and served 17 years on the steering committee.
And so we are very fortunate to have Dale as our special guest today. And so Dale, can you start us off with providing a little background on your AIA best practices article there, "Why We No Longer Stamp Shop Drawings." That'd be a great place to start.
DALE MUNHALL: OK. And that is a topic that seems to have some enduring interest from the profession. I know that in my background in those four decades, the first half that I spent in small- and medium-sized architecture firms, where I was not only the architect, the construction manager as agent, and administering all those direct trade contracts for the owner and designed it and build it. So I learned a lot under the theory that which does not kill you makes you stronger. And I certainly learned a lot during those years.
And so as I mentioned, the last 28 been at LEO A DALY, which is a large, national, multinational or international design and A&E firm. And I wanted to make note, too, that the things that I'm talking about here, I do to help train not only our architects, but our engineers as well. And a lot of the references that I made in that webinar are still available, incidentally, on the WTW website.
And also, those things also apply to engineering practices not only just under AIA documents, but also very similar in the EJCDC engineering-type documents. Our sister company is strictly infrastructure engineers and horizontal construction. And so our policies and practices extend across both vertical construction of [INAUDIBLE] and also for horizontal things. So as Dan said, I was heavily involved in AIA. And at the time, in 2009, 2010, I had a committee in the company where we were having all kinds of issues we ran into on shop drawings and the misunderstandings and problems. And had a committee together.
We started looking at our shop drawing stamp. And that stamp, every time we went to put something in that we had learned and things we knew to do, it got bigger and bigger and at some point, the size of a dinner plate. So what we said is, look, why do we stamp these anyway? Because one of the issues we came into that people confusing our stamp with a professional seal. And we'll get to that in a minute too.
But that was an issue that we got around. And we also didn't want to seem like we were renegades in the profession by not stamping shop drawings. Now, remember that the title of that article that I did was "Why We No Longer Stamp Shop Drawings" at LEO A DALY. And we wanted to make that clear and get it through AIA, both the documents committee and the general counsel. And I went through the gauntlet, any of you published those kinds of things. It really gets thorough review not only in my company, then also AIA.
But what it came out to in the end, they were so much on board with it they published it as best practices because they realized that the things that we have as standard language in the AIA documents can be misconstrued, especially that four-letter word approval. And we'll talk about that in a bit. So that's where this came from. And I know that now 13, 14 years later, I'm still getting questions, and that article still shows up on the internet. And I still get questions from federal training agencies and so forth, which kind of catches the attention for the article. But that was intentional because it just made you think about, hey, are we stamping? Or what are we doing with these documents?
DAN BUELOW: And I got to be honest, Dale, I was very surprised, frankly, at the level of interest regarding the topic of shop drawings in this program. I really would say that what we talk about in our risk management programs, for the most part, are rather dry, if not downright boring. And I frankly would have put this at the top of the list there of dry and boring topics. So what am I missing here? And why all the interest, do you think? Again, you touched on it. But really, it was surprising.
DALE MUNHALL: Yeah. And actually it shouldn't have been surprising to me because I've had a number of conversations, both during the time that I was one of the reviewers for the AIA Handbook of Professional Practice, 12th edition. And I got very much involved with my colleagues and how we were presenting the practice of architecture. And we realized, too-- and I know this has been a discussion in most firms for a long time is, hey, we didn't really learn how to really be an architect in the weeds of day-to-day practice in school.
So that webinar that I did, I really crammed a lot of information into it that was kind of the equivalent of what would have been a two-semester course. The idea here on the webinar, and again on the article, was to convey that there's a big difference between stamping and reviewing and approving. And those are the key words that I think that we've tried to resolve with doing that stamp.
And the way that we resolved it, ultimately on that committee and then through the article to the AIA, was we realized that the stamp was counterproductive. So what we did to convey all that information, we made a one page out of it that we now specify in our specifications. And I'm not going to refer to a lot of contractual things here today. But there's one that I will in a minute.
But we make that one page a requirement for all submittals. And all of that has the exculpatory language of the A201 general conditions, which are really the key. And I recommend those to everybody that's on this podcast and in their practice. Be really sure that all of our practicing professionals understand the AIA A201 general conditions of the contract for construction.
And again, Dan says that will probably be at the top of a list of boring things. But it is absolutely crucial to the practice of our profession and the liability. And I know that Willis Towers Watson heavily involved in the risk prevention and professional liability insurance. The more we knew about the terms covered by the A201 and be able to explain them to our client and our staff-- because I'm telling you that the contractors know them, and they really study heavily, for some of them, on ways to get around those requirements if we're not doing a good job of tightening specifications on our client's behalf.
DAN BUELOW: And again, as you noted here, really, is that we reference the A201. And we'll say architect a lot. But really, we could use architect and engineer interchangeably, really, design professional. Standard care is the same. The EJCDC, in fact, has equivalent language in their contract, right? So—
DALE MUNHALL: Exactly.
DAN BUELOW: --that's a great point. And so what you're saying here is that your firm, then, to really kind of solve this stamp problem, if you will, came up with this transmittal form as a cover page, right? You don't stamp it. You initial it. I'm looking at the document right here. And you might want to explain a little bit on that. And I would say that this handout is available. Just contact Dale or me directly. And again it's part of our A&E webinar that we present, which is also available.
DALE MUNHALL: Yeah, exactly. And what we did on the cover page is what we would have had on a stamp. And it just is an absolute contract requirement that the contractor uses this to cover any of their submittal documents.
And what we did is, as Dan mentioned, is that the initials only.
These are not mortgage documents. And we don't have to sign every page because that conveyed exactly the wrong impression that it was the AE's professional work, which is absolutely wrong. And that's the confusion between a stamp and a seal. The professional seal is not involved in these.
And here's probably the first key contractual point that we'll talk about today. And that is that submittals, shop drawings, samples, product literature, and even RFIs, delegated design, and substitutions, none of those are contract documents. And that's the key issue is that no contract document can never change anything of the requirements of the contract. And so that is really the central point that we have to make on that transmittal form, that all of those things are for is to show how the contractor intends to comply with the design intent that's expressed in the contract documents.
And we can't change anything on those submittals, we nor the contractor, any other noncontract document. So that's, I think, the key takeaway. And we do have also the language because another big misunderstanding is that, as I referred to as a four-letter word, approval. We don't use that. And we use instead the A action is no exceptions noted, either noted by the contractor nor noted by us. And if we look at it and feel that it complies with the specifications that we had written, that we will take no exception. Or a B action, if there is an exception, either noted by us or the contractor, we can say this is what the exception is, make it blue instead of red or specified or whatever, that doesn't have an impact on time or price, we can do that under a B action.
Under a C action, revise and resubmit, and then we make those notes on all the drawings and on the transmittal form. And D, of course, rejected and E, not required, returned without action. And that one is one that is really important. And I strongly recommend that no architect lets contractors bombard them with a lot of information that isn't for the record and isn't required. A, it takes a lot of our time and increases our risk.
I just had one here this week, in fact, from a contractor who was trying to submit things on one of their means and methods systems just for the record. No, we don't review it. It's a means and method. So be careful of those. So those actions and the initials of all the disciplines-- and I refer to it the architect here as AE because my firm now has teams of all disciplines. And so we think of it as AEs. Architect is the AE.
DAN BUELOW: Great overview. And looking at this great form here, what are some of the main things about the submittal process that you've found to be commonly misunderstood?
DALE MUNHALL: Well, the biggest misunderstanding is that the contractor sometimes asks to have a variation on the submittal and then not point it out. This is where the action about no exceptions noted. We require the contractor to sign and approve. And this is, I think, a key thing that we need to always, as architects and engineers, make sure that the contractor is doing these as part of their work plan. And in fact, if I had my way-- I know I've wrestled occasionally with the documents committee of AIA for this. But I wouldn't call them shop drawings anymore.
The word drawings is so heavily involved with architects' and engineers' professional work, that if we called the shop drawing submittals what they are, which is the contractor's work plan, then I don't think anybody has so much of a misunderstanding of what the purpose is and why the architect isn't doing the work and isn't responsible for the work. We're just trying to make sure that they have complied with the contract requirements to the best of our ability. But, A, we're not perfect. And, B, you can't slip one by the goalie here. If the contractor doesn't point out that they're doing something different, then we don't have to take responsibility for their errors or omissions. And we can discuss that a little bit too, Dan.
DAN BUELOW: Yeah. And there is a big problem, isn't there, with just the general contractor's perspective, which is the erroneous perspective that these shop drawings' reviews is an opportunity to confirm that the project requirements have been clearly relayed to and understood by the trades and fabricators to ensure a correct product has been provided, which that's incorrect. That's false.
DALE MUNHALL: Yeah. In fact, the transfer of liability from the contractor to the architect, unfortunately for some less-reputable contractors, is the whole point of doing either a shop drawing or an RFI. And that, of course, is not possible because they're not contract documents. And the biggest problem is that they have to approve it.
And here's one of the things to advise every architect and engineer listening is that our specifications are not suggestions. They're contract requirements. The submittals in RFIs are not contract documents, and it can't change anything. The only thing that you can ever change in that contract, after we let our babies go and out into the world and that contract is executed-- we can't change anything either. And nobody can do anything without starting with the signature of the owner, followed by the signature of the contractor for any change that would come up on any of the noncontract documents.
DAN BUELOW: Yeah, and during our program earlier, you stated that the terms in the industry standard A201, the general conditions of the contract for construction, are fundamental. But few design professionals tend to read or fully understand these requirements. And so I keep coming back to the importance of the A&E understanding these agreements, but also getting the other parties on board, educating, managing these expectations so that the owner and the general contractor understand or on the same page, if you will, are in sync. How do you go about that? I mean, what's the best way to manage that? I suppose it begins with the design professional understanding the agreement, as you stated.
DALE MUNHALL: Yeah, it is. And I think that the key word in what you just said, Dan, is that "at the beginning." What's the first word in contract administration? It's contract. It's all the contracts. And no, it's not glamorous. And as you said, many of my colleagues avoid it like the plague. But absolutely it's the foundation of what we do as a profession and what we do on behalf of our clients.
Most of these discussions we're talking about here are involving the design bid build, CM at-risk, CM agent project delivery. Design build is a whole different animal and subject of a whole different podcast, I guess. But in my time in the DBIA, I firmly have to keep reminding everybody in our staff, too, that in DBIA, the client is the contractor, not the owner. So that's another subject off of this one.
But I got originally-- and part of that motivation here is that so much time in the field and so many projects in my career, where I would go on to the job site-- and I think everybody listening to this podcast can relate to this when they go to a job site, and some trade contractor you find standing there saying, hey, this HVAC unit is the wrong voltage for that panel. And I'd say, well, why didn't you check that before you do it? Well, because the shop drawing, you approved that. And so you're responsible for it now. And yeah, we made that mistake on the shop drawing, but it's your problem now because you approved it.
That was the motivation behind all of this. And it's wrong in every way it could be. But if we don't start, as Dan was just implying, at the very beginning to establish that bond with our client, and then at the beginning with the contractor to make sure everybody is on the same page-- and a lot of these things for the submittals are part of that work plan, making sure everything's on the same page. That's why we have them do them is to show that they are coordinating properly and that—The one thing I said earlier that I was going to make only one contractual reference here, and that's to the A201, particularly in section 4.2.7. And I would strongly recommend to everybody that's involved here in contract administration pay attention to the A201 4.2.7 that explains a lot. And it says, "the architect will review and approve--" they use the word approve in the AIA language-- "or take other appropriate action," as I mentioned to you, "upon the contractor submittals, but only for the limited purpose of checking for conformance with the information given and the design concept expressed in the contract documents," end quote.
There's a lot packed in there. These submittals are not part of the contract documents. And the appropriate action is what I reviewed with you. But the word approved is a limitation. It's only for compliance with the concept expressed in those documents. So you're interpreting-- you're not responsible. In fact, we had to include that particular language on our transmittal form, pointing out the requirement that the purpose of the review that we do of the contractor's approved work plan is to check for compliance with the concept, not for dimensions or quantities or anything else.
Those remain with the contractor. And I guess, that's the second major bullet point in this discussion today, is that make sure that you understand what the limited purpose of those submittals are and who's responsible. It remains with the contractor, unless-- and there's one thing I will say. And I have to tell this as I do doing the training for our staff across the country and our offices in the Middle East too, which is another different market. But we can pierce that veil of nonliability by using what I've just kind of joked with Dan before, the seven deadly words of, don't use on submittals and RFI reviews anything doing with the words change, move, revise, modify, any word of change.
If you instruct the contractor to do something, and they have a reasonable expectation that you were authorized to do it-- and in my entire career, no one has ever authorized the architect to give directions to change the contract unilaterally. So you don't have the authority. But if you do make an instruction like that, you can pierce that non responsibility for errors and omissions by giving faulty directions, and also by delaying. You have a contractual
responsibility in the 101 or whatever the form of contract you do-- almost always specifies how much time you have to return and process these work plan submittals to keep from slowing the project down.
So be sure to take that seriously. Make sure it's coordinated and understood among all parties. And then that will maintain your exemption from liability. But you can lose it if you don't conduct yourself on those noncontract documents appropriately.
DAN BUELOW: Begs the question, why do contractors even need to submit shop drawings in RFIs?
DALE MUNHALL: Well, there's a couple of main reasons. And I've mentioned this about the work plan, is to show the owner and the architect that they have a work plan. If I had my way, I would call it a work plan not a shop drawing. Secondly, to confirm that all parties-- the owner, architect, contractor-- are on the same page. Projects that are not in sync always have problems.
So we want to make sure everybody's together because time and money are of the essence. And too many owners think that too many architects don't take the money and time seriously. And we have to work hard to avoid that. The third reason is to coordinate all of the various moving parts of the project to minimize the harm to the owner,
protect their time and their money and the quality of their project. And the fourth reason is-- and this was maybe the third thing to impress upon our attendees here today is-- we're not perfect either. And the law does not require us to be perfect. It just requires us to be diligent and to perform-- and this is the standard-of-care issue, and we have to maintain that through these noncontract documents as well. But we have to perform at the same level of skill and diligence of another professional practicing under similar circumstances on a similar project.
We have to maintain that professional organization and to be able to say that on those submittals, realize that that's our last chance to get this right. And if we're not perfect, we're not the sole repository of good ideas either. If the contractor has a better idea or one that we haven't considered, consider it. If they find that there is a potential conflict or deficiency in our specs and our drawings, listen to them and accept it.
But don't execute that within the noncontract document. Say, OK, we agree with your idea. We will now propose it to our client for a change order, and then do it, and do it promptly. Things don't get better with age.
DAN BUELOW: And do these conditions for shop drawings also apply to RFIs, delegated design, and substitutions?
DALE MUNHALL: Absolutely. In fact, the one that's probably most misunderstood in that group is the difference between a substitution and a submittal. If there's a deviation right away on these things, which we require on the transmittal, we immediately throw that into a form that we have developed on the substitution application. This was a cautionary thing. And I would caution all of our staff and all architects be wary of a substitution in shop drawing clothing.
If they try to make a change-through, and you acknowledge it, they can't slip one by the goalie for you. But you can only recommend to your client that whatever is proposed in that submittal be considered for a change order. And you have to have a form that requires enough information for you to do the analysis properly to compare against the basis of design and then make a recommendation or to not recommend.
If the owner wants to proceed any way, and you don't agree with it, you don't have to sign the change order. But that requires a lot of exercise in diplomacy. So that's the biggest one. The RFI, also, develop your own form. Use the AIA form. And make sure that it says on there it can't change a contract document, and that you do want the contractor always to suggest a resolution of whatever item they're bringing up.
Well, here's one thing my firm does that's a little unusual too. We change the I in RFI to not say Information but to say Interpretation. We will only respond to interpretations of the drawings that we have issued for construction as contract documents, not just blanket information. We're the "what" and the "why" guys. And the contractor is the "when" and "how."
But we shouldn't be answering questions that involve when and how. That's where you get into trouble. As far as delegated design goes, that one is a bugaboo for the whole profession. And it's becoming more and more current. In my training of our staff, I identify 32 different items that we do in systems that we can and often do call out for designed by a separate registered professional in the area of the project.
But we can't wash our hands of that. We can incur more liability if we handle that badly and don't account for the interface of where the start and stop and specifying the criteria that that delegated designer has to meet. So remembering that when we make recommendations, we're responsible for them. And we need to tighten up our specifications. And the key for those specifications is they're contracts. They're not suggestions.
And so I know sometimes I have people respond to me say, well, the contractor doesn't want to do it, and they just choose not to. Well, they can't. It's a contract. It's a breach of contract.
If you do that section right, in 013300 3100 for RFIs, you determine the conditions, go through them with your client, make sure that they're on board because there's no such thing as a division 0 or 01 that is standard one size fits all. It's got to be completely crafted to your project, with your client, and sit down and explain what their choice is at the beginning. That's the whole key.
DAN BUELOW: A big concern, as you go through this, is that from a liability standpoint, the design professional can incur liability for delay or other impacts if responses are slow or exceeding turnaround time or authority granted to the AE, services agreement, and/or as defined in the construction contract in general conditions. You raise that in your article. And that, from a risk standpoint, is a concern, isn't it? When do you flag? And how about flagging that to the owner if you feel that the process is being abused or overlooked?
DALE MUNHALL: Yes. And just using the word approved or reviewed is not a "get out of jail free" card. You have to still follow through with it. So understanding your liability and also understanding your client's needs and explaining those things to them is also key to keeping the project started right and ended right. And so the contracts, both ours with the client and our owner with the contractor, are absolutely crucial for any contract administrator to all of the terms and conditions in that and then to make sure that our staff follows them.
And so if we stay within our standard of care and respect of the client's time and money and be able to do within the time and the contractual requirements we've agreed to, that's basic quality, too, is compliance with specifications, as the old Edward Deming definition, classic for quality. And take the contract seriously and the specification seriously.
DAN BUELOW: And how best can the design professional go about coordinating all those provisions in the contract's general conditions and specifications?
DALE MUNHALL: Number one, you got to be involved. A lot of my colleagues don't enjoy specifications and don't properly supervise an outside spec writer, or don't get involved in wanting to draft that contract with the owner and their attorney. Attorneys are people. And if you're knowledgeable of your practice and the practice of architecture, you probably know more about it than most in-house attorneys.
Now, attorneys that specialize in construction are very knowledgeable. And you can learn from them too. But I strongly recommend sitting down with your client and their attorney and then going through all of the modifying the A201 general conditions, the front-end specifications, and getting it all right from the beginning.
But then you have to know your contract and administer it evenly. And you have to lead your client and explain to them what their choices are. That's, I think, the key to everything. And then the general conditions and specifications flow from that effort to inform and respect your client's choices and then carry them out.
DAN BUELOW: We've talked a lot on our Willis A&E podcast and education programs about how most claims against design professionals, again, are, in fact, rooted in the nontechnical versus the technical causes of loss, meaning that more claims are due to client expectations not being clearly established and managed through effective documentation practices-- more claims are due to that than actual errors or omissions. And managing risks associated with shop drawings really does involve managing both the technical and nontechnical risks, as you've described here, Dale.
On one hand, you should be communicating with your client and managing expectations as to your scope of work and responsibility when it comes to shop drawings. However, there's also that technical aspect of the review. And this technical risk is compounded, given the prevailing challenges that the design profession has relative to staffing. And one thing all firms have in common these days, the difficulty in finding enough qualified staff.
And when we have these staffing challenges, we will see, as we have in the past, a rise in actual technical claims because work is being pushed down to less-experienced staff. And more often than not, the least-experienced members of a design firm are tasked with reviewing shop drawings, aren't they? Being the mundane tasks that many perceive it to be, it's also a good task and opportunity for young professionals to be trained. What's your advice on all that? How do you and your firm manage those challenges?
DALE MUNHALL: That is really a challenge. And it affects, I think, every firm in the country, Dan. And yes, we did lose an awful lot of the gap around the time of the Great Recession. But nonetheless, what you just said about the less-experienced staff being charged with handling the icky things that somebody doesn't want to do on submittals and so forth, is a big mistake.
And in my firm, we solved that by making sure that the design professional, who was on the design, is always the one who does the review. Now, many years ago-- and this is back in the 20th century when I started. A lot of firms made the big mistake of putting the kid just out of school doing the shop drawing. But then it was all seven paper copies of everything.
And the lead architect would do the markups. And then you transfer all those red lines over seven copies of everything and try not to make a mistake transcribing. That was the bad, old days. Now, we do it electronically. And it's fast. But fast doesn't necessarily mean good or safe.
So taking that seriously and making the professional in charge be the one who does that and communicates, at the same time, some of the mundane clerical aspects still can be with younger people because they have to learn. But you can't let them have no training wheels. You've simply got to take that as a mentoring opportunity to teach the newer staff how to stay safe. And that's part of the quality control that we do during construction. And if you do that right, there aren't too many architects who get sued during design. It's always during construction where these things come up. And communication-- I agree with you, Dan. All the studies that I've read, 70% of the issues-- and I think some of your professional liability colleagues say too, that only 30% of claims during construction are technical E&O things. 70% are because of mismanaged and poor communication and making things worse than they were to begin with, particularly that one you mentioned about delay. Part of every claim that's the biggest component is delayed for the construction phase claims. So hoping it goes away is the worst thing that I would advise anybody ever to do.
DAN BUELOW: You can't take a passive stance in managing this. Often a tacit response, as we've said, is the worst response. And again, if you have a situation where if the contractor, for example, is not adhering to approved schedule and dumps on the design professional shop drawings that allegedly will impact critical path performance, the AE should communicate to the owner ASAP that you've received these critical past submittals for review without reasonable time. If you do nothing, you certainly are hanging yourself out there, right?
DALE MUNHALL: Right. And the whole thing of prompt communication, even if it's wrong, it's better than not responding and putting your head in the sand. You know what happens to the tail feathers that are sticking out. It's not good. So waiting for things to go away is the worst solution.
DAN BUELOW: Excellent points, Dale. Any parting words of wisdom for us on this topic?
DALE MUNHALL: I think that's just it, start early and make sure everybody knows what they're doing the contract document and a noncontract document and protect yourself against changes during construction-- because those are the ones you pay attention to-- and do it with the owner's signature, otherwise you're taking on liability.
DAN BUELOW: Excellent. Thank you very much, Dale. Well, that concludes our program. I want to thank our special guest, Mr. Dale Munhall, National Director of Construction Phase Services for LEO A DALY. Thank you, Dale.
DALE MUNHALL: Thank you, Dan.
DAN BUELOW: This has been a very informative program. As noted, we will be bringing Dale back for a review of some of the questions we received from the 1,000-plus attendees we had at our Willis A&E webinar that Dale presented on this topic. And that'll be coming out at our next podcast. And where can your listeners, Dale, get a copy of-- you referenced the article "The Seven Deadly Words" but also this article, "Why We No Longer Stamp Shop Drawings." Where can we get a copy of that?
DALE MUNHALL: Well, right now, I know that you've got it on the Willis website on the webinar page. I can provide it to them. I think it's still on the AIA website. But I haven't seen it. It's moved around, like, three times.
DAN BUELOW: OK. And again, anybody just reach out to us. And for a lot more detail on the subject, again, are Willis A&E clients and all their staff members have access to the webinar we did with Dale and attorney Doug Palandech on this subject. And we can find that, along with a listing of all of our Willis A&E on-demand programs in the Education Center of our website at Wtwae.
Well, thanks again for joining us and talk to you soon.
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