Dangerous Ideas About Construction Contracts and Documents
I have probably read just enough about Consensus DOCS to be dangerous, yet I still have the nerve to offer some opinions on it.
In September 2007 the Associated General Contractors in unison with 20 construction-related organizations released what has become a challenge to the status quo of American Institute of Architects (AIA) contract documents. The idea evolved over a number of years as more and more construction contracts were seen to become unfair by assigning risk unevenly and specifically heavier on contractors than on architects and engineers. The idea was to bring all parties to a typical contract to the table and have them reach a consensus on the fairest contract they could craft, and then publish the contract as a model to be used by those who wanted to. The result is a roster of more than 70 documents and forms that construction businesses can buy and use for their projects.
By one account the AIA makes $34 million a year selling its construction documents. We could assume that Consensus DOCS will cut into that in light of the numbers of people who are switching over.
I was always a bit surprised at the one-sidedness of construction contract documents. I have used a variety of them and until I essentially wrote my own I never felt any of them assigned risk according to responsibility. As I worked with the documents I found myself wondering why the sub would be held responsible for delays if the owner was the cause. Or why the architect wasn’t held accountable for incomplete or erroneous plans. The answers in many cases were caught up in the hierarchical nature of construction, who had the most money, and therefore the best lawyers, and a mix of acceptance and expectations that ran deeply into the fabric of the construction environment.
If in fact Consensus DOCS has received input from representatives of all groups and they have all reached a consensus on the wording of the final documents then this is probably a good thing for all involved. But I am not a big fan of one-size-fits-all solutions where the solution is controlled by one entity. Eventually the one size always seems to morph into something that fits some better than others while costing everyone more and more.
