Here’s a helpful comparison of and analysis of some important contract sections in the AIA 201 (2007 and 2017 versions) and ConsensusDocs (2014 and 2017 versions). While not intended to be all inclusive, this summary comparison of the contract documents will run as a three-part series. Part I covers Financial Assurances, Design Risk, Project Management and Contract Administration. Part II will cover Schedule/Time, Consequential Damages/LDs, Claims and Disputes/ADR. Part III will cover Insurance and Indemnification and Payment.

Financial Assurances

• What assurances are there that the owner can pay for the project?
• The Contractor should have the right to request and obtain proof that the Owner has funding sufficient to pay for the Work. The provision should also provide that the Contractor may terminate the Contract if the Owner refuses to allow a review of funding documents, or should the Contractor reasonably determine that the Owner does not have sufficient funds to pay for the Work.

Relevant Sections:

• A201 2007 Section 2.2.1; 2017 Section 2.2.1-2.2.2 A201
• 2014 & 2017 ConsensusDocs 200: Section 4.2

AIA:

• Section 2.2.1 A201 2007 & 2017: Both editions require the Owner, upon Contractor’s written request, to provide, “reasonable evidence that the Owner has made financial arrangements to fulfill the Owner’s obligations under the Contract.” Thereafter, the Contractor may only request such evidence if (1) the Owner fails to make payments; (2) a change in the Work materially changes the Contract Sum; or (3) the Contractor identifies in writing a reasonable concern regarding the Owner’s ability to make payment when due. If the Owner does not comply, the Contractor may stop work.
• Additionally, A201 2017 Section 2.2.2 awards costs to the Contractor for demobilization and remobilization.

ConsensusDocs 200:

• Section 4.2: both before and after commencement of the Work, at the written request of the Constructor, the Owner must provide reasonable evidence of sufficient financial arrangements to fulfill its obligations. This is a condition precedent to Constructor’s commencing or continuing the work. Further, the Owner must notify the Constructor before any material changes in its funding condition occur.

Design Risk

Relevant Sections:

• 2007 & 2017 A201: Sections 3.2.1 – 3.2.4
• 2014 & 2017 ConsensusDocs 200: Sections 2.3; 3.15, 3.3.1-3.3.2

AIA:

• Section 3.2.1: “Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents.”
• Section 3.2.2: The Contractor does not have the responsibility to discover errors, omissions, or inconsistencies in the Contract Documents but, if the Contractor does discover any such issues, the Contractor must report them to the Architect.

Pursuant to the 2007 and 2017 versions of the A201, the Contractor must:

• carefully study and compare the Contract Documents;
• take field measurements;
• observe site conditions affecting the work;
• The Contractor is liable if it fails to perform the obligation mentioned above and the failure to perform these obligations results in damages to the Owner.
• The Contractor is not required to ascertain whether the Documents are in accordance with applicable law, statute, ordinance, etc.
• Under the Spearin Doctrine, the Party responsible for furnishing the completed design impliedly warrants its sufficiency and adequacy. U.S. v. Spearin, 248 U.S. 132 (1918). Accordingly, beware of any changes to this standard design risk provision that would require the Contractor to bear all costs arising from errors, inconsistencies or omissions that by reasonable study of the Contract Documents the Contractor should have discovered.

ConsensusDocs 200:

• Section 2.3: The Owner’s Design Professional provides architectural and engineering services except as otherwise required by section 3.15 and excluding services within the construction means, methods, techniques, sequences and procedures employed by the Constructor in connection with construction operations. The 2017 version excludes design services delegated to the Constructor and services within the construction means, methods, techniques, sequences and procedures employed by the Constructor in connection with construction operations.
• Section 3.15: The Constructor is not responsible for design criteria specified in the Contract Documents. If the Contract Documents specifically require the Constructor to be responsible for the design of a particular system of component, the Owner must specify all required performance and design criteria. The Constructor must then procure the services of a Design Professional but is not responsible for the adequacy of the performance and design criteria supplied by the Owner.
• Section 3.3.1-3.3.2: Before commencing work, the Constructor must examine and compare drawings and specifications with information furnished by the Owner or in the Contract Documents, relevant field measurements made by the Constructor, and any visible conditions that could affect the work. If the Constructor discovers any errors, omissions or inconsistencies in the Contract Documents, the Constructor must report them in writing to the Owner. The 2014 provides that the Constructor is liable if it fails to perform this obligation and that failure damages the Owner. The 2017 version does not contain this provision
• Constructors must take care in specifying any design responsibilities in section 2.3, including but not limited to performance specifications, equipment selections, preparation of shop drawings, etc.
• Constructor-initiated value-engineering changes may alter the Parties’ respective responsibilities concerning the adequacy of component designs and thereby shift risk for design responsibilities to the Constructor.

Project Management

Relevant Sections:

• 2007 & 2017 A201: Sections 3.9.1 – 3.9.3
• 2014 & 2017 ConsensusDocs 200: Section 3.4.1

AIA:

• Section 3.9.2 & 3.9.3: The Contractor submits the name and qualifications of its proposed superintendent to the Owner and Architect (or to the Owner through the Architect). The Architect may reply within 14 days stating whether the Owner or Architect has reasonable objection or if the Architect requires additional time to review the choice. The Architect’s failure to respond within 14 days constitutes notice of no reasonable objection.
• Section 3.9.3: The Contractor shall not change a proposed superintendent to whom the Owner or Architect has made reasonable and timely objection. “The Contractor shall not change the superintendent without the Owner’s consent, which shall not be unreasonably withheld or delayed.”
• The only difference between the 2007 and 2017 versions is as follows: The 2007 version requires the Contractor to furnish the identity of its proposed Superintendent in writing to the Architect, who submits it to the Owner. The 2017 version does not specifically reference written notice but only requires that the Contractor notify the Owner and Architect of its proposed Superintendent.
  

ConsensusDocs 200:

• Constructor shall provide competent supervision for the performance of the Work. Before commencing the work, Constructor shall notify Owner in writing of the name and qualifications of its proposed superintendent(s) and project manager so Owner may review their qualifications. If, for reasonable cause, Owner refuses to approve the individual or withdraws its approval after once giving it, Constructor shall name a different superintendent or project manager for Owner’s review.
• ConsensusDocs 200 allows for more direct communication between the Owner and Constructor without an intermediary and balances decision-making responsibilities and exposure differently than the AIA. (See sections 2.3, 3.3, 3.15, 4.3, etc.).

Contract Administration

Relevant Sections:

• 2007 & 2017 A201: Section 4
• 2014 & 2017 ConsensusDocs 200: Sections 2.1 and throughout

AIA:

• The Architect is the Contract Administrator. The Architect must become generally familiar with and keep the Owner informed about the progress and quality of the Work.
• The Architect is required to report “known deviations” and “observed” defects or deficiencies in the Work.
• The Architect acts as the Administrator “during construction until the date the Architect issues the final Certificate for Payment.”
• The Architect must respond to RFI’s in accordance with agreed time limits or “otherwise with reasonable promptness.”
• One change between the 2007 and 2017 editions is that the newer edition states that the Architect is required to be included in conversations between the Owner and Contractor only when related to the Architect’s services of professional responsibilities. The Owner must notify the Architect of conversations that relate to the Work even when they do not affect the Architect’s services or professional responsibilities. This allows more direct communication between the Owner and Contractor while maintaining the Architect’s ability to remain knowledgeable of discussions relating to its responsibilities.
  

2017 ConsensusDocs 200:

• Unlike the AIA A201, ConsensusDocs 200 virtually removes the Design Professional (Architect) from the intermediary role between Owner and Constructor.
• Instead, ConsensusDocs 200 places much of the supervision and contract administration duties on the Owner. Pursuant to section 3.10.1, the Owner and not the Design Professional issues a written order containing work instructions, now called an Interim Directive rather than Directed Change, to uncover work for the Owner’s inspection and review.
• Pursuant to section 3.11.5, the Owner and not the Design Professional notifies the Constructor when the Owner deems any part of the work or worksite to be unsafe. The Owner and not the Design Professional directs the Constructor to stop work and/or take corrective action.
• Additionally, under the ConsensusDocs Contract, the Owner, not the Design Professional, issues certificates of substantial completion and final completion pursuant to sections 9.6.1 and 9.8.1. The Owner may at its discretion seek the assistance of its Design-Professional to compile a list of items to be completed or corrected before issuing the certificates.
• It is important to note that the Design Professional’s role is largely controlled by ConsensusDocs 240, not 200. The Constructor generally does not have access to this agreement unless the Owner or Design Professional provides a copy.
• According to ConsensusDocs, this shift away from the central role the Architect plays under AIA documents allows the Owner to establish a role for the Design Professional during the construction phase of the Project that matches the Owner’s needs and desires.

Part II will cover Schedule/Time, Consequential Damages/LDs, Claims and Disputes/ADR. Part III will cover Insurance and Indemnification and Payment.