Vol. 8 No. 7		July 1989

They think it would be a fine idea for you to guarantee your work. They would like to have you assume responsibility for the performance of the general contractor and for safety on the job-site. They trust you will cheerfully warrant that the project will be completed within the budget for construction. Just who are these folks, anyway?

They are the members of the National Association of Attorneys General (NAAG), the highest ranking legal minds in the executive branch of state government. They are acting, they aver, because the standard forms of agreement developed by the American Institute of Architects and the Engineers' Joint Contract Documents Committee reflect the points of view of design professionals and contractors and, "...are not necessarily in the best interest of the public owner." They would like to propose an alternative.

Unreasonable, untenable, and unfair. No other informed conclusion can be drawn from the "Model Design and Construction Documents" published by the Attorneys General in December 1988.¹ It is a set of documents which, in the opinion of one legal commentator with extensive experience in the construction industry, "...no one but desperate or uninformed architects or engineers will...(accept)."²

Why did they do this? Perhaps it is because that's just the way attorneys are. Draft a one-sided agreement, get it on the table as quickly as possible, and dig in. This is a strategy some attorneys cannot resist in their efforts to place the interests of their clients ahead of all others. But whose interests are being served? Ostensibly, those of the public. How?

1. By elevating the standard of care beyond that required of you under the common law and beyond that which you can reasonably insure?

2. By imposing duties you cannot perform and responsibilities you cannot meet?

3. By allocating risk in a manner which ignores decades of industry practice and centuries of carefully considered refinements in the law?

Is all this truly in the public interest, or are we simply faced with overreaching at its most objectionable; leaving to you the responsibility to shout, "Foul" and cope with the consequences as best you can?

Contracts are generally assumed by the courts to be the outcome of good faith negotiations between parties of mutual bargaining power. This, in theory, is the way contracts come to reflect a meeting of the minds. It is one element of their enforceability.

But, draft an onerous agreement, refuse to discuss it, give it an official stamp of approval, and place it in the hands of public officials at all levels of government, and we have a mockery of good faith negotiations. Simply finding someone with the authority to modify the language will be difficult and time-consuming enough. Your efforts to negotiate changes to that language, time and again, will be an extraordinarily frustrating and expensive undertaking.

One would think that reasonable people who understand the workings of government in a pluralistic society would behave in a manner consistent with that understanding. Most who set out to challenge long-standing principles of law and practice do so recognizing that conflicting interests must be taken into account, that workable change, in the absence of political crisis, can only be effected in marginal increments, that all interested parties simply have to be given an opportunity to be heard.

Not so the Attorneys General. In the five years over which the "model" documents were being drafted and refined, surely there was some point at which those most affected by the creativity of the drafters, those with firsthand knowledge of the issues and their inherent complexities, would have been consulted? If architects and engineers can be counted among those with firsthand knowledge, apparently not. It seems the Attorneys General had a better plan.

They would decide how risks and responsibilities in design and construction should be allocated. Once their deliberations were complete, everyone else could simply adjust accordingly. With all due respect, this is so patently arrogant an approach that it leads one to believe these well-intentioned public servants would drill their own teeth if they could only position their appendages properly to do so.

This enterprising and misguided initiative needs to be brought under control before it spreads, like cancer, throughout the public sector. It appears to be too late to enter into meaningful negotiations at the national level; all attempts to do so have been rejected out of hand. The documents have been published and distributed, and the various states are being urged to adopt them without delay.

How should you respond? Shout, "Foul!" The documents, as drafted, are unworkable and unacceptable. Minor tinkering with the language on a case-by-case basis will not address the fundamental problems they introduce. Strong political objections to the implementation of the documents need to be raised at the state level by all professional societies affected by them. Mobilize the appropriate committee in your organization, develop a strategy for political action, and set it in motion without delay.

If you find yourself asked to sign "A Model Form of Agreement between Owner and Design Professional," your best course of action is to reject it out of hand. If you are not in a position to do so, be prepared for arduous and expensive negotiations, and build the cost into your fees.

If you encounter a wall of resistance and a "take it or leave it" attitude, best that you leave it. Let your competitors scramble for the work. They are not likely to be around long enough to be particularly worrisome competition, and while their energies are being wasted defending the indefensible, you can direct yours to more rewarding pursuits.
____________

¹ National Association of Attorneys General, "Model Design and Construction Documents: A Model Form of Agreement between Owner and Design Professional, A Model Form of Agreement for Construction between Owner and Contractor, Standard Form General Conditions of the Contract for Construction," (Washington, D.C.: December 1988).

² Kornblut, Arthur T., "Legal Perspectives: Watch Out for this New 'Model' Owner/ Design Professional Agreement," Architectural Record, February 1989, pp. 29-31.