Robert H. Sweeney, Jr.
rhs@jenkinsfenstermaker.com

Gary A. Matthews
gam@jenkinsfenstermaker.com

Update on Form Construction Project Contracts

by

Robert H. Sweeney, Jr.
Gary A. Matthews

Last fall, the American Institute of Architects (AIA) began publishing its new set of form contracts with revisions based upon several years of comments from design professionals and others in the construction industry.  The AIA, however, no longer is the only organization publishing such forms.  The Associated General Contractors of America (AGC), the Engineers Joint Contract Documents Committee (EJCDC) and the Construction Management Association of America (CMAA) are but three of the other groups that now publish form contracts.  An understanding of the types of form contracts available from these organizations is necessary for determining which and what type is most appropriate for your construction project.  Below you will find a sampling of the organizations that publish construction contracts.

The AIA is the most well-known organization that publishes form contracts.  It published its first form contract more than 100 years ago and now publishes more than 100 different contracts and forms.  The AIA separates its documents into families and series based on project type or project delivery method.  The AIA documents are not state-specific and can be used nationwide.  A large body of case law interprets the various provisions of the AIA documents and, as a result, the use of AIA documents often can provide a degree of security based upon the foreseeability of an outcome if a dispute arises.  This element of the AIA documents is very important because construction projects generally are conducted without the benefit of state statutes.

The AIA A201 is the primary document in the AIA’s set and it is sometimes referred to as the “keystone” document.  The AIA solicits opinions and comments from a wide variety of parties involved in construction projects including owners, architects, engineers, contractors, subcontractors, lawyers, the surety and insurance industries and others.  Despite these opinions, certain industries claim that the AIA documents are too centered on the architect’s role in a construction project and provide too much authority to the architect in many circumstances. 

The AGC is the oldest and largest national construction trade association in the United States.  Its members are involved in commercial construction for both public and private entities. The AGC publishes more than 70 different forms and contracts that are similar to the AIA family of documents.  Its set of form contracts is called “ConsensusDOCS.”  In an effort to differentiate its ConsensusDOCS from the AIA family of documents, participants from all aspects of the construction industry, including approximately 21 organizations representing owners, contractors, subcontractors and the surety and bond industries, were involved in their drafting.  In prior years, the AGC and AIA had published some joint documents.  However, last fall, a press release from the AGC stated its Board of Directors unanimously had voted against endorsement of the AIA’s A201 document because the Board believed that the A201 shifted too much risk to general contractors and others not in the design profession.  As a result, the AIA and AGC probably will not publish joint documents in the future. 

The EJCDC has been involved in the development and endorsement of contract documents for more than 30 years.  While several organizations participate in the drafting of EJCDC documents, the committee is a joint venture comprised of the AGC and three other professional groups engaged in the practice of providing engineering and construction services for constructed projects.  The EJCDC documents have been drafted reflecting “the experience and knowledge of the many engineers, owners, contractors, and other construction-related professionals who comprise the committee” and with the assistance of legal counsel.  These documents can be used in a variety of situations, but they really are geared toward engineering projects, such as water or waste projects.

The CMAA is an organization that was started approximately 25 years ago.  Its primary focus involves construction management-related issues.  A typical situation involving a construction manager may concern a project with more than one general contractor and may involve coordination and scheduling among them to complete the project.  Therefore, the CMAA’s form contracts, which in theory could be used on small projects, are better suited to large, sophisticated projects or heavy construction. 

In addition to these organizations, several private vendors sell form contract software via the internet and other sources.  Many of these vendors direct their materials toward smaller general contractors performing residential or light commercial construction.  These documents may be acceptable depending upon the size and scope of the project.  However, they do not have the benefit of the legal history and jurisprudence of the AIA behind them.  Therefore, in that regard, they are less secure and less desirable if a dispute should arise.

When deciding what type of contract is necessary for your construction project, several issues should be considered.  Among others, these include the size and scope of the project, the number of parties involved (i.e., architects, construction managers, general contractors, subcontractors, etc.), the cost and the likelihood for disputes.  Take all of these thoughts into account in your contract(s) to ensure that your project is completed on time, on budget and with a mechanism to address disputes.

For more information regarding construction contracts or assistance with other construction contract or litigation questions, feel free to contact the attorneys at Jenkins Fenstermaker, PLLC.