A New Challenger to AIA Documents
February, 2010
Builder/Architect, Seattle/Puget Sound EditionAfter an intensive three-year effort, a consortium of owners, contractors and trade groups joined together and published what they consider to be contract documents based on best practices and proper risk allocation for the benefit of the construction industry at large. The result is a new family of construction documents entitled ConsensusDOCS, where DOCS stands for designers, owners, contractors and sureties.
ConsensusDOCS is endorsed by 22 construction organizations - including the Associated General Contractors of America, Associated Builders and Contractors and National Electrical Contractors Association - that represent a wide selection of industry members, from developers to owners to general contractors to subcontractors.
Despite the wide consensus represented by these national trade organizations, proponents of the long-standing contract documents published by the American Institute of Architects (AIA) argue that the oft-revised AIA documents are more than sufficient, and there is no need for another family of construction documents. For the reasons below, we disagree with that conclusion.
The Owner is in Charge
Unlike the AIA documents, which automatically elevate the architect as the go-to party for all construction contracts, ConsensusDOCS mandates meaningful and direct communications between the owner and the general contractor.
Rather than making the architect the default entity providing professional (and expensive) services and the middleman and/or referee, ConsensusDOCS retains that power with the owner, who is often the one with the greatest incentive to see the project run smoothly. If the owner wishes to empower the architect or a construction manager to serve, to an extent, in that primary role, only simple revisions are required to the documents to make that happen, as is the case with AIA documents if the owner wishes to reduce the architect's role.
Anecdotally, and particularly when neither ConsensusDOCS nor AIA documents are used, it has been lamented over and over by owners and contractors (usually after expensive mediation or litigation) that had there been better communication between the primary parties during the project, disputes could have been avoided or at least substantially reduced.
The drafters of ConsensusDOCS recognized this issue and sought to rectify this shortcoming of the AIA documents.
As remarked last September in Chicago by lawyers Larry D. Harris and Brian M. Perlberg at the American Bar Association Forum on the Construction Industry: "The ConsensusDOCS emphasize dispute avoidance and communication before problems become intractable ... If successful, the effort may go a long way to cutting down the mountain of modified standard paperwork that has bogged down many projects and chocked courts, arbitrators, mediators and disputes review boards. This has the potential of being something really big, if given a chance."
All that said, it should not be concluded that the AIA family of documents is somehow outdated or past its prime. Indeed, AIA documents are vetted, revised regularly and have a solid history of judicial and nonjudicial interpretation. ConsensusDOCS, however, do provide owners, developers, attorneys and other project participants with a widely accepted alternative for the design and delivery of construction projects.
Comparison to AIA Documents
The following is a brief comparison of certain and material provisions with the two sets of documents.
Document Ownership
ConsensusDOCS provides the owner with greater ownership and usage rights with regard to design documents and stresses the need of the owner to determine the appropriate documents to be given to the contractor in order for the contractor to successfully complete the work.
Financial Information
In contrast to AIA documents (AIA A201-2007), the owner is only obligated to provide the contractor with financial information relating to the project and not about the overall general financial situation of the owner.
Contractor Reporting
Consistent with the revised language in AIA A201-1997, the reporting requirements for contractors in the ConsensusDOCS is now much more onerous than in the past. Specifically, the contractor is obligated to now report not only errors it discovers in the design documents, but also any error or omission that is made known to the contractor. The contractor's failure to report such errors leaves the contractor open to compensate the owner for all resulting losses.
Outside Link: seattleps.builderarchitect.com/digital-editions/editions/february-2010/