Shop drawings and other submittals are intended to establish that the contractor’s performance will conform to the design elements of the contract. Those elements are presumed to be objective. And the designer should be objective as well in evaluating conformance to the contract. The submittal of samples or shop drawings should not be an opportunity to redesign the project or use the trial-and-error method to develop nuances in the design. Yet, this is exactly what happened on one recent project.

The contract called for buildings to be faced with precast concrete panels. The color of the panels had to match the color of a sample piece of material provided by the project architect. A lengthy process of submittal, rejection and resubmittal followed. It was later determined that the contractor’s initial submittal conformed to the color of the material provided by the architect. The entire process, which was ruled a constructive change in the contract, resulted from the architect’s “uncertain, evolving idea of the color he wanted to see.”

Other cases this week addressed a highway contractor’s continuing duty to the motoring public and a builder’s qualification to serve as an expert witness. The highway contractor, having conformed to the contract drawings and specifications, had no continuing obligation to rectify dangerous conditions or warn the public of those conditions at the site. And the builder was properly disqualified as an expert witness, not because of lack of degree or professional license, but because of lack of specialized experience.