AIA or ConsensusDocs: Which standard contract best fits your project? | Dump Trucks Charlotte NC

Mission

The AIA’s mission includes “to organize and unite” and “promote” the architectural profession. The AIA’s contracts show a bias towards architects and give architects a disproportionate share of decision-making authority without the same level of responsibility.

ConsensusDocs' goal 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 at the drafting table.

Role of the Owner, Passive Check-Payer or Decider

AIA documents demote the owner into a passive project role. An owner’s main function is to do one thing – write checks. The underlying message in the AIA B101 architect agreement and AIA A201 general conditions, is that the architect knows best. And the contractor is someone to kept at arms-length.

Owners possess an active role in ConsensusDocs. An Owner ultimately has the most to gain or lose in a construction project’s success because it is the Owner’s long-term capital asset. An Owner may delegate, to an architect, authority to approve change orders. However, decision-making authority defaults to the owner. 

Communications

Historically, AIA contract documents funnel all communications through the architect. The AIA A201 General Conditions is for a contract between an owner and contractor, yet “Architect” is by far the most used word. Until 2017, an owner and contractor were ONLY supposed to communicate directly through an architect. While thankfully this has changed, the basic silo structure remains. 

ConsensusDocs emphasizes direct party communications to facilitate positive relationships. Electronic communications, such as email, are allowed for project administration and formal notice. 

Project Financial Information and Sharing 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. 

AIA restricts access to receive financial information once the project commences. And under the AIA A201, commencement of the project is the date of contract signing, which is before dirt is even moved. Thereafter, a contractor must show a reason (as determined by the architect) to receive financial information. The consequences for not receiving reasonably requested information is not clear because new AIA language in this section is vague.

Writing Style and Timely Updates​

ConsensusDocs contracts are written from the perspective that good legal writing is simply good writing. Clear and concise contract 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 conflict among the two documents. Responsibilities and obligations, such as indemnification, are reciprocal. So, what is good for the goose is good for the gander. ConsensusDocs revises its documents every 5 years, but also allows the flexibility for discrete revisions typically based on changes to case law or the insurance market. Timely updates keep users up to date.

AIA contract documents are updated once every ten years. Given their long history, AIA’s substance and language style is slower to change. The substantive terms are not always consistent when comparing an architect’s responsibilities that are at times aspirational, such as endeavoring to do something in a timely fashion, and without clear consequences for not doing so. Obligations falling on the contractor come with hard deadlines and broad consequences, especially when such obligations coordinate with an architect’s responsibility. One example is a contractor’s obligation to provide a submittal schedule, and unclear consequences for an architect if such submittals are not timely processed.​

Caselaw and Litigation

AIA has published contract documents since 1888. Their documents are the most commonly used standard construction contracts. Entire books have been devoted to the cases generated by litigated projects using the AIA contract documents.

ConsensusDocs now possesses a successful 10-year track record. Billions of dollars in projects have been put in place using the documents. Not one reported case has been generated using ConsensusDocs – something that ConsensusDocs touts.

Dispute Mitigation vs Dispute Escalation

AIA contracts' first line of dispute is through an initial decision maker (IDM), which defaults to the architect. Architects are not trained to serve in a quasi-judicial role, but the AIA A201 thrusts an architect into the role of judge, jury, and executioner. The IDM process is complex, technical, and easily overlooked.

ConsensusDocs utilizes an innovative tier approach that requires the parties to talk with each other at the project and senior project level to mitigate claims before they are escalated to a formal claim. ConsensusDocs also employs innovative and effective dispute mitigation techniques such as a project neutral or a dispute review board (DRB).

Design Documents

The AIA B101 Owner/Architect Agreement strongly protects an architect's interests in its intellectual property in design documents. If there are any disputes or potential disputes between the architect and the owner, the architect can stop the project in its tracks. Protecting an architect’s IP rights takes precedence over advancing a project forward. AIA forbids an owner from using design documents on a future project, even renovations, unless the architect is involved. An architect is “entitled to rely on, and not be responsible for the accuracy, completeness, and timeliness of services and information furnished by Owner.” The owner may not rely upon the design professional’s provided information in a reciprocal manner.

ConsensusDocs provides owners with a balanced architectural agreement that isn’t written by an architectural association. ConsensusDocs 240 Owner/Design Professional balances a design professional’s IP rights and an owner’s need to build or renovate a project. An owner may continue a project if there is a dispute between the owner and architect provided payment for services performed has been paid. An architect retains their claim rights. Also, owners are given the option to negotiation and pay for the right to reuse design documents for future projects along with a waiver of claims against the architect.

The ConsensusDocs architect agreements provide the owner construction phase design documents that are sufficient “to bid and build the work.” Reciprocally, the design professional may rely upon the design services provided by others.

Conclusion

AIA contracts’ long history and usage exhibits a traditional philosophy of a passive owner that utilizes an architect to make most decisions, and protects owners from contractors’ abuses. ConsensusDocs encourages direct party communications to build positive collaboration. Owners gain more control of their projects. Constructors are viewed as problem solvers rather than problem makers. Architects are treated fairly, but are not favored over others. As successful projects trend toward collaboration, contracts should reflect business relationships to build better.