A Consideration of New Documents for a New Day
Last Fall, two organizations, one well known and established and one recently formed, published a series of contract forms for the construction industry. In releasing its 2007 revised edition of its popular series of project forms, including the widely utilized A201™* General Conditions of the Contract for Construction, the American Institute of Architects (AIA) expressly acknowledged considerable industry concerns about various of the terms in the A201-1997 form, most notably those relating to financial matters and dispute resolution. Consequently, AIA attempted to refine its product in order, in its perspective, to “fairly balance divergent interests, and accurately reflect the modern construction industry.” We have previously highlighted some of the more important changes in the new A201-2007 edition. See www.seyfarth.com/SpecialEdition.
While AIA has been publishing and revising its forms every ten years for many decades, within the last few years a consortium of owner, contractor, and trade groups joined together to develop and publish what they consider to be “contract documents based on best practices and proper risk allocation, for the benefit of organization members and the construction industry at large.” The end result of the effort are documents branded ConsensusDOCS™**.
Among the endorsers of ConsensusDOCS are owner associations such as Construction Owners Association of America, Inc. (COAA), National Association of State Facilities Administrators (NASFA), and The Construction User Roundtable (CURT); contractor associations like Associated General Contractors of America (AGC), and Associated Builders and Contractors, Inc. (ABC); a dozen subcontractor associations, surety associations such as National Association of Surety Bond Producers (NASBP) and The Surety & Fidelity Association of America (SFAA), and others, e.g., Construction Industry Roundtable (CIRT) and Lean Construction Institute (LCI). The release of the ConsensusDOCS forms marks the first time in the 100+ year history since AIA began publishing its forms that an industry-wide collaborative set of contract documents has been published.
The current revision of the ever-popular AIA set of contract documents, coupled with the emergence of the new ConsensusDOCS forms, inevitably leads to such questions as “So, what’s the difference?”, “Which form more fairly and appropriately allocates risks among the parties in view of their respective abilities to manage and control risk?” and “Which form should be used for my project?”
To begin to answer those questions, which may well vary from project to project and from company to company, this Special Edition compares certain features of a ConsensusDOCS form for a lump sum project, namely the ConsensusDOCS 200 form, with analogous AIA forms set out in the A101-2007 and A201-2007. To do so, we have tried to quote the current texts in a neutral fashion and then comment on them separately. At times the nature of a section or clause did not lend itself easily to that format, and in those situations, we have summarized the language.
To be sure, there are also many provisions that do not differ materially between the AIA and ConsensusDOCS forms. Those provisions include, for instance, design delegation responsibilities, suspension of the work, additional insureds, the freedom to the parties to choose either litigation or arbitration as the preferred method of alternative dispute resolution, and consolidation of arbitrations. We have chosen not to comment on those provisions.
We recognize that our efforts here, of necessity, are limited. Both AIA and ConsensusDOCS have published different forms for a variety of kinds of projects. Some of these contain unique and worthwhile features, but the scope of a broad analysis of the respective family of forms must be left to others, who will undoubtedly write volumes about the AIA revisions and the ConsensusDOCS forms.
Our purpose here is merely to focus on two principal forms and compare and contrast the approaches used for significant contract elements as to which there are substantive differences. We hope that you find our comparison useful.