Stites & Harbison, PLLC

Historically the construction industry has viewed the American Institute of Architects contract forms as  the "standard," "generally accepted"  forms for use by owners, contractors, construction managers and architects.  These forms are the AIA's single largest source of revenue, and historically the AIA has sought comments from all involved in the construction industry in  making changes to their various "standard" forms every ten years.

Many owners and developers, throughout the 80's, 90's and to present,  used  AIA contract forms as a starting point, kept the numbering system and subject matters dealt with, and "modified" the AIA documents into their own "standard" contracts shifting substantially more risks of development to the contractor.  The base line, or beginning point, for contract drafting has remained AIA centered, even though resulting contract documents differ substantially from AIA .

In November of 2007 the AIA released its revised 2007 edition construction documents (being the first major revisions since 1997).  The AIA usually consults all the disciplines involved in the construction industry. Some trade associations declined to participate in AIA's revision process this time.  Some construction trade associations felt that the AIA documents were continuing to drift unfairly in favor of owners and giving architects more and more decision making authority while simultaneously exculpating architects from liability.  When the AIA  2007 edition documents came out in November of 2007,  the Associated General Contractors voted unanimously, 600 directors, not to endorse the AIA A201 (2007 edition) General Terms and Conditions document.  This was the first time in 50 years the AGC has not endorsed the AIA's general conditions.

Growing dissatisfaction with the AIA's documents, the lack of substantial input into revisions of AIA documents, among other factors, led to meetings between 20 construction trade associations representing designers, architects, owners, engineers, contractors, subcontractors, and sureties to see if construction documents could be drafted upon which all associations could endorse.  The AIA was invited to participate but declined to do so (not surprising as any documents developed would be in direct competition with the AIA's bread and butter documents).

The group of construction related trade associations met, developed and recently issued (September 28, 2007) their own documents, endorsed by 20 trade associations, and  are known as the Consensus Documents or "Consensus Docs."  They include construction contracts, design-build documents, subcontracts and subcontracting documents, and program management documents.  The 70 contract forms address all project delivery methods and deal with electronic communications and building information modeling (BIM) (ConsensusDOCS 202.2).  Consensus Docs also provides a tri-party collaborative agreement called "alliancing" which encourages consensus decisions based upon the best interests of the  project at issue.  The website for these documents is www.ConsensusDOCS.org, and a Guidebook was issued November 13, 2007.  The starting point used by the Consensus Doc drafters was the old AGC (Associated General Contractors) form documents.  The final products, however, are touted to reflect the project's best interests, rather than a single party's interests.  The intended focus was the project's best result, not negotiating risk shifting contract clauses, or language to assess fault or neglect.  The result was intended to apportion and equitably allocate risk among project participants.  As noted, these new documents were just  recently released, and time will tell whether the drafters hit their mark.

The president of the Construction Owners Association of America, Jack Mumma,  has stated that "when it comes to contract documents, there's no such thing as one size fits all."   With the dissatisfaction with AIA's latest revised documents, and the entry of Consensus Docs with a broad level of industry support, it will be interesting to see what develops as industry "standard" in 2008.