It has long been a contention in the construction industry that the American Institute of Architects (AIA) Construction forms have been biased towards design professionals and they place too heavy a burden of liability on the shoulders of contractors and owners. To that end, in 2007, a new set of construction and design forms were developed called ConsensusDOCS. While AIA Construction Forms and ConsensusDOCS share many more similarities than differences, there are some key differentiating factors that your firm should be aware of before you choose one over the other.
It’s a common perception in the engineering, design and construction realms that AIA Construction forms favor architects, and to some degree, this is true. It lacks a specific definition of the relationship between the design professional and the owner and it places less responsibility on the architect/engineer with regards to the interpretation of the architectural plans during construction. In other words, a design professional can claim they are not liable for design flaws in the actual construction because their design “inferred” a certain construction element be used when it clearly wasn’t during the time the building was under construction.
Because of the perceived favoritism of AIA Construction forms and the more neutral (both parties share responsibility for design implementation) ConsensusDOCS cover contractors better, the Associated General Contractors of America (AGC) has decided to back ConsensusDOCS and it has not officially endorsed AIA Construction forms since 2007.
In fact, ConsensusDOCS were developed by a group of contractors, subcontractors, owners and estimators, so one could argue that the new set of documents favors the interests of these parties over that of architects and other design professionals. This is seen in the clear requirement of the subject of insurance coverage by the architect or engineer in the contract. In the AIA Construction forms, they were merely mentioned, but there was never a requirement, since it was based on the assumption that architects maintained insurance on a regular basis.
One item that was removed from ConsensusDOCS that still exists in AIA Construction forms is the definition of Standard of Care. This clause simply states that an architect will do their job to the best of their abilities in a timely manner. In short, it states that the architect/engineer will be a professional. When they were developing a draft, the professionals working on ConsensusDOCS felt this was stating the obvious and chose to omit this section.
One important distinction between ConsensusDOCS and AIA Construction forms is the clear definition of conflict of interest with regard to the design professional. AIA Construction forms are rather gray about what constitutes a conflict of interest, but ConsensusDOCS set forth a very specific definition of what is considered to be a conflict of interest.
Interestingly enough, AIA Construction forms were the first to include “green” clauses in 2007 that required the design professional to inquire about the feasibility of integrating green design practices into the construction of the building. ConsensusDOCS responded fairly quickly with their own Green Building Addendum (form 310) to address similar topics.
It seems that, while AIA Construction forms are partial to architect, ConsensusDOCS are leaning more towards favoring the contractor/owner side of things. Of course, when you choose which documents you will use on your next project, you may want to get a more in depth read on the comparisons for yourself or work with a professional that understands the key differences. To that end, there is a comprehensive PDF available that was written by lawyers discussing the differences of the two forms.