1. American Bar Association
Forum on the Construction Industry
2008 Fall Meeting
“HEY, WHO’S IN CHARGE HERE?” The ConsensusDOCS Owner-Architect Agreement
Penny Pittman Cobey
McKenna Long & Aldridge, LLP
Ricardo Aparicio, AIA
General Electric Company
Jerome V. Bales
Lathrop & Gage, L.C.

2. CDOCS 240 AND AIA B101: KEY POINTS OF COMPARISON
Role of the A/E During Construction
Responsibility for Site Safety
Indemnity and Waiver of CD’s
Ownership of Documents, Copyright and Licenses
Dispute Resolution

3. AGENCY
ConsensusDOCS 240
Neither the A/E nor any of its consultants shall act on behalf of or in the name of the Owner unless authorized in writing.
Paragraph 2.3

4. AGENCY
AIA B101
Architect serves as the Owner’s Representative only to the extent provided in the Contract Documents.
Section

5. AGENCY
Comment
The AIA maintains the Architect’s role as Owner’s Representative on the Project; ConsensusDOCS has significantly reduced the role of the A/E. Unfortunately, it is difficult to reduce the A/E’s role as Owner’s Rep without also lessening the A/E’s influence on the Project and ability to affect the quality of construction.

6. COMMUNICATIONS ConsensusDOCS 240
A/E and Contractor communicate through Owner; Contractor and Owner communicate directly.
Subparagraph 3.1.4

7. COMMUNICATIONS AIA Documents
Contractor and Owner “endeavor” to communicate through Architect.
A201 Section 4.2.4

8. COMMUNICATIONS Comment
Regional practices may vary, but most sophisticated
owners rarely agree to communicate with their
contractors only through the architect.

9. SUBMITTAL REVIEW ConsensusDOCS 240
Architect reviews submittals and must respond within 10 days, unless otherwise agreed by Owner, GC and Architect.
Subparagraph

10. SUBMITTAL REVIEW
AIA B101
Architect reviews all submittals, and contract adds exculpatory language designed to protect Architect from errors or omissions claims based on such review.
Section

11. SUBMITTAL REVIEW Comment
Note that ConsensusDOCS 200, at , states that the Contractor shall direct submittals to the Owner “and, if directed, to the Architect/Engineer.” Sophisticated owners will have staff to route and track submittals; A/E’s on other projects should advise Owners to modify

12. RIGHT TO REJECT WORK ConsensusDOCs 240
A/E has no right to reject work.

13. RIGHT TO REJECT WORK AIA B101
The A/E has the right to reject Work that does not conform to the Contract Documents.
Section

14. RIGHT TO REJECT WORK Comment
The right to reject work is based on the Architect’s traditional role as agent of the Owner and guardian of the Owner’s interests. Many owners today insist on making the final decision as to whether the quality of the Contractor’s work is acceptable.

15. A/E AS INITIAL ARBITER OF DISPUTES
ConsensusDOCS 240
ConsensusDOCS does not give the A/E this authority.

16. A/E AS INITIAL ARBITER OF DISPUTES
AIA B101
Architect is Initial Decision Maker by default unless Owner- Contractor Agreement designates a different entity.
Section

17. A/E AS INITIAL ARBITER OF DISPUTES
Comment
Despite the AIA position, the reality is that many architects are no longer interested in taking on this job, and owners are increasingly reluctant to give it to them.

18. RESPONSIBILITY FOR SITE SAFETY
ConsensusDOCS 240
No duty to investigate, but if the A/E has actual knowledge of safety violations, the A/E must give prompt written notice to the Owner.
Subparagraph

19. RESPONSIBILITY FOR SITE SAFETY
AIA B101
The Architect is not responsible for site safety.
Section

20. RESPONSIBILITY FOR SITE SAFETY
Comment
Depending on the state in which the Project is located, the new language of ConsensusDOCS 240 could make the A/E a site safety policeman—a role the AIA has long resisted.

21. INDEMNITY AND WAIVER OF CONSEQUENTIAL DAMAGES
Indemnity: CDOCS Para. 7.1
Mutual
Narrow Form
Comparative
Negligence-based
A/E indemnifies Owner, GC, subs

22. INDEMNITY AND WAIVER OF CONSEQUENTIAL DAMAGES
Indemnity - AIA B101
No indemnity

23. INDEMNITY AND WAIVER OF CONSEQUENTIAL DAMAGES
Indemnity - Comment
Although B101 contains no indemnity on the part of the
Architect, B103 (for large and complex projects) includes
one.
Architect indemnifies only the Owner
Indemnity limited to available insurance proceeds.
– Section 8.1.3, B103

24. INDEMNITY AND WAIVER OF CONSEQUENTIAL DAMAGES
Waiver of Consequential Damages - ConsensusDOCS 240
Mutual
“Limited”—but in fact, broad
Paragraph 5.4

25. INDEMNITY AND WAIVER OF CONSEQUENTIAL DAMAGES
Waiver of Consequential Damages - AIA B101
Mutual
Broad
Section 8.1.3

26. INDEMNITY AND WAIVER OF CONSEQUENTIAL DAMAGES
Waiver of CD’s - Comment
On this issue, ConsensusDOCS and the AIA Documents form a united front against the Owner, who has much more to lose in waiving CD’s than the A/E (or the Contractor).

27. OWNERSHIP OF TANGIBLE DOCUMENTS
ConsensusDOCS 240
Owner acquires property rights, but not copyrights, in the Documents, on condition of full payment.
– Paragraph 10.1

28. OWNERSHIP OF TANGIBLE DOCUMENTS
AIA B101
Architect retains all property rights in the Documents as well as copyright.
– Section 7.2

29. OWNERSHIP OF TANGIBLE DOCUMENTS
Comment
Owners will still want to amend either provision to make sure that the Owner’s right to use the Documents to complete the Project is unconditional and cannot be enjoined, even though A/E may have enforceable right to payment.

30. EFFECT OF TERMINATION ConsensusDOCS 240
If for convenience: Owner retains the right to use the Documents to complete the Project, provided A/E is paid.
– Subparagraph
If for cause: 240 is silent as to any Owner payment obligation.
– Paragraph 8.1.

31. EFFECT OF TERMINATION AIA B101 – Section 7.3 – Section 11.9
Architect’s termination of agreement for cause results in automatic revoking of Owner’s license.
– Section 7.3
Owner’s termination of agreement for convenience means that Owner must pay a licensing fee to Architect in order to complete the Project.
– Section 11.9

32. EFFECT OF TERMINATION Comment
Even though the AIA has modified its aggressive protection of the Architect’s IP rights over the years, those rights remain the Architect’s greatest source of leverage for ensuring payment.

33. DISPUTE RESOLUTION Direct discussions Step Process - ConsensusDOCS 240
“Dispute mitigation procedures” or mediation
Arbitration or litigation
– Article 9

34. DISPUTE RESOLUTION Step Process - AIA B101 Mediation
Arbitration, litigation, or “other binding procedure”
– Sections 8.2, 8.3

35. DISPUTE RESOLUTION Fees, Costs
ConsensusDOCS 240 – prevailing party (as determined by adjudicator) recovers “costs.”
– Paragraph 9.5
B101- no such provision

36. DISPUTE RESOLUTION Joinder and Consolidation
ConsensusDOCS requires joinder of all parties necessary to resolve the claim.
– Paragraph 9.6
B101- permits joinder and consolidation in some situations.
– Section 8.3.4

37. DISPUTE RESOLUTION Continued Performance
ConsensusDOCS requires continued performance
during dispute resolution process.
– Paragraph 9.1
B101- no such provision

38. DISPUTE RESOLUTION
Choice of Law
ConsensusDOCS law of the place of the Project.
– Para. 10.4
B101 - law of the place of the project, except that the Federal
Arbitration Act governs arbitration.
– Section 10.1

39. DISPUTE RESOLUTION Statutes of Limitation/Repose
ConsensusDOCS 240—no such provision.
AIA B101—maximum 10-year statute of repose, depending on
applicable law.
– Section 8.1.1

40. DISPUTE RESOLUTION
Comment
Both ConsensusDOCs and the AIA documents allow the parties
to choose between binding arbitration or litigation.  The menu of
nonbinding resolution processes set forth in ConsensusDOCS
240 will be particularly appealing to owners of larger projects.

41. OTHER ISSUES
Standard of Care
Insurance
Design Services