ASA President’s Letter—October 2018
Dear ASA Members,
If you still have questions whether your company ought to use ConsensusDocs standard form documents instead of AIA’s, Brian Perlberg, executive director and senior counsel for ConsensusDocs, makes a compelling argument in his feature article, “AIA or ConsensusDocs Contracts,” in this edition of The Contractor’s Compass.
“The American Institute of Architect’s mission includes ‘to organize and unite’ and ‘promote’ the architectural profession,” Perlberg writes. “The AIA’s contracts show a bias toward architects. AIA contracts give architects a disproportionate share of decision-making authority without the same level of responsibility. ConsensusDocs’ goal, on the other hand, is to write fair contacts that advance better project results. Fairness stems from neutralizing bias by giving all the stakeholders to the A/E/C industry an equal voice to the drafting table.”
That’s just his comparison of “missions” between the two organizations. Perlberg goes on to compare and contracts communications, the role of the owner, project financial information and sharing, writing style, case law, dispute mitigation, and design documents.
“Historically, AIA contract documents funnel all communications through the architect,” Perlberg writes. “The AIA A201 General Conditions is for a contract between an owner and contractor, and yet the most prevalent word is architect. When coupled with an AIA agreement, the word architect appears 400 times. Historically, the owner and contractor were NOT supposed to communicate directly with one another, but ONLY through the architect. Thankfully this obstacle has finally been removed in 2017, but the basic structure remains.”
“ConsensusDocs,” Perlberg continues, “emphasizes positive and direct party communications. Parties are encouraged to speak directly to one another, early and often in the project to facilitate a positive relationship.”
As for sharing of project financial information, ConsensusDocs allows a builder to request and receive project financial information before and during construction. “ConsensusDocs provides the industry’s only standard questionnaire and guidelines to help ask reasonable questions about project financing,” Perlberg writes. “AIA restricts access to receive financial information once the project commences.”
Another huge difference is writing style. “The ConsensusDocs are written from the perspective that good legal writing is simply good writing,” Perlberg writes. “Contract language with a clear and concise language helps the parties understand, administer, and interpret the contract. A distinguishing feature in ConsensusDocs is the integration of the general terms and conditions and the agreement into one document. This avoids the two documents from conflicting and avoids confusion. Provisions are written so that the responsibilities and obligations, such as indemnification, are reciprocal on both parties in a consistent fashion.”
“Over ConsensusDocs’ 10-year history,” he continues, “a great deal of effort has been made to refine the language and make sure it is consistent in style and even placement throughout the family of 100-plus contract documents. ConsensusDocs comprehensively revises its documents once every five years but also has the flexibility for discrete revisions.”
On the other hand, AIA contract documents are updated once every 10 years. “Given their long history, AIA’s substance and language style is slower to change,” Perlberg writes. “The substantive terms are not always consistent when comparing an architect’s responsibilities and a contractor’s.”
Case Law and Litigation
Case law and litigation are critical factors that should be considered, as well. AIA has published contract documents since 1888, and AIA documents, old and new revisions, generate a great deal of case law and decisions interpreting the language in the documents. “There are entire case law books devoted to the cases generated by litigated projects using the AIA contract documents,” Perlberg writes. “AIA touts the breadth of case law associated with AIA contract documents.”
ConsensusDocs has been around for over 10 years. “Billions of dollars have been put in place using the documents,” Perlberg says. “Not one reported case has been generated using ConsensusDocs. ConsensusDocs touts the infrequency of projects that fall into litigation using their documents.”
Now with a 10-year track record, ConsensusDocs provides a solution developed and endorsed by industry-wide participants for standard design and construction contracts. ConsensusDocs takes a plain English and fair-to-all-parties’ approach, and encourages direct party communications to build positive collaboration. Constructors are viewed as problem-solvers rather than problem-makers. ASA is a founding member and leader of the ConsensusDocs coalition. ASA members save 20 percent off ConsensusDocs subscription packages using the code ASA100 at checkout at www.consensusdocs.org. When you consider the differences between the ConsensusDocs and AIA standard form contracts, the decision to use ConsensusDocs seems obvious.
2018-19 ASA President