Vol. 7 No. 5		May 1988

The new editions of the AIA standard documents have stirred up a good deal of controversy. Most of the attention is focused on the "General Conditions of the Contract for Construction," AIA Document A201. The problems with this document are considered by some attorneys close to the profession to be so serious as to lead them to advise against its use-at least until what they view to be major and substantive flaws can be addressed.

The AIA documents have long been accepted as the standard in the construction industry. This is the source of their greatest strength. They reflect consensus on issues of great complexity and importance, and they embody a widespread, commonly accepted understanding of the roles and responsibilities of each of the players in the construction arena.

Standardization is also the source of some weakness. The documents, of necessity, reflect compromises among the stakeholders, and they are general in nature because they are intended for general use. They require careful review and adaptation to the specific situation at hand, and the importance of meeting this need has not always been as clear to the parties as it might be.

The AIA documents, nevertheless, have historically served their constituents well. They have been a source of stability in an otherwise unstable environment. From this perspective, the present controversy is truly an unfortunate turn of events, for it introduces the danger of a loss of confidence in the documents. The unintended result could be a weakening of the foundation of common understanding that has been so carefully constructed over the past 100 years.

Critics of the 1987 edition of the General Conditions argue that compromises made in the pursuit of harmony with the Associated General Contractors have gone too far. They are concerned about the introduction of changes which adversely affect the interests of the owner, and they warn of new and unwelcome risks for the architect. (fn 1)

According to the critics, you should be concerned about both; the former because of the fiduciary duty you have to your clients, and the latter because you may well find your new responsibilities and the risks they entail to be unacceptable. They ask that you consider the impact of the following changes on your role in construction:

Section 1.1.3 redefines the "Work" in such a way as to invite the interpretation that it includes temporary structures, such as scaffolding, lifts, shoring, and bracing. Your duty to observe this "Work" raises the unwelcome specter of responsibility for jobsite safety, and it entails the risk that a decade of successes in denying any such responsibility may be seriously undermined.

Section 3.3.1 introduces the possibility that you may elect to assume responsibility for the means and methods of construction. Section 4.2.7 reinforces your right (afforded under the new owner/architect agreement) to approve means and methods in connection with your review of contractor submittals. The problem, as architects and engineers with the right to stop work discovered to their chagrin, is that rights to act have a way of creating unintended duties to act. This, too, has important implications as respects the job-site safety issue.

Section 9.6.3 imposes an obligation to respond to requests from subcontractors for information concerning payments made by the owner for their portions of the work. Section 9.6.5 affords the same right to material suppliers. This may not only be an unwanted burden, but it may signal the end of years of effort to deny the existence of a contractual duty to subcontractors and suppliers. Sections 4.1.2 and 4.1.3 may have the same effect as respects the general Contractor.

Section 10.1.2 introduces a duty to render a judgment in the event of a dispute between the owner and the contractor over whether asbestos or PCB encountered on the site has been eliminated or rendered harmless. Given the limitations of the indemnification by the owner applicable to this situation and the absence of professional liability insurance protection, this may be not only an unwelcome, but an unwarranted responsibility.

Those who defend the new A201 emphasize the enormous challenge posed by the quest for consensus. They point to the need to accommodate both contemporary industry practices and changes in the law in the drafting of the documents, and they argue that the new forms, "...are fundamentally sound and continue to uphold the Institute's long-standing commitment to publishing fair and balanced standard form Contrasts for the construction industry."

What about the specific concerns raised by critics of the new A201? As for those identified above, here is the AIA's response:

Section 1.1.3 concerns that redefinition of the "Work" would create a responsibility for the inspection of temporary structures used in construction were considered by the Documents Committee during the drafting of the new forms. It was concluded that these concerns were not persuasive in light of the new focus on "completed work" in 4.2.2.

Sections 3.3.1 and 4.2.7 do little more than recognize practical realities, for the need to step in and direct the contractor arises more often than is commonly realized. Establishing the architect's right to intervene is a more compelling concern than any risks inherent in doing so.

Sections 9.6.3 and 9.6.5 were introduced in the interests of coping, "...as honestly as possible with the stresses on the job between the contractor and subcontractors or suppliers." The data is simple and objective, and it is unlikely that subcontractors or suppliers will be damaged by a mistake by the architect in making it available.

Section 10.1.2 was found to be necessary to balance the interests of the architect, the owner, and the contractor. (The risk that it may open a door through which attorneys representing third parties injured by the presence of asbestos or PCB on the site may cheerfully plunge was apparently either overlooked or considered to be minimal.)

Where does all this leave you? It suggests, for one thing, that you may want to review the new documents carefully with your attorney before you put them into use. It also suggests that the controversy is not likely to fade away. If you are a member of the AIA, you may want to let the Institute know where you and your attorney stand on the issues that have been raised.

(fn 1) Sapers, Carl M., "The New AIA General Conditions-A Flawed Document that Architects Will Use at their Peril," Architectural Record, February 1988.

(fn 2) Ellickson, Dale, "The AIA Defends A201/1987," Architectural Record, March 1988.