AIA Contracts

[DonMirabito]

All,
I know in the past we have discussed AIA contracts and all the politics of the AGC splitting from the AIA and such. Time has passed and the real world landscape has probably changed. I have always used my own custom contract forms based on work from Gary Ransone's Contractors Legal Kit and other legal language specific to my state. However, I have been made aware by my attorney, I wasn't following the AIA's update cycle, that they have a whole new series of contract documents that I might want to consider. What is the concensus on this? It always used to be that the AIA docs were very biased towards the Archie as King and the GC as a dog assuming all the risk and responsibility. Is that still true?

Regards,
Don

[David Meiland]

Is your attorney telling you there's a reason to change? I assume you have tailored your contract to cover all the bases you want covered, that you think it treats you and the customer equally, and that your attorney has reviewed and approved everything. If so, I don't see much reason to change. If a job comes along and they want to use AIA documents, you could probably do so easily, possibly striking some language and amending as needed. I would expect to spend some money on legal fees to deal with this, if it happens.

[DonMirabito]

Dave,
Thanks for the response. My attorney isn't saying my contract is bad or wrong. Its that there is a lot of legal history (Precedent/Case law) regarding the AIA contracts. My contract being "custom" has no precedence or case law supporting it as I have been lucky(Good?) enough to never have been involved in a lawsuit. He was suggesting I consider the AIA contracts for that reason. However, I am leery of using them because I had heard that they are very biased towards the various design professionals(archie's/engineer of record, etc.) while pushing all the risks onto the GC.
Regarding my contracts I have always tried to write them in simple plain english. However, it has been brought to my attention that in law "english" doesn't always mean what it says. Apparently, there is precedent for using certain phrases in legal documents that have certain "litigated" meaning. You know kind of like when you read the fine print of an insurance contract. To the average human being its all nonsense, but to the legal community and courts it has real meaning. That is why I'm trying to get a better understanding as to what most contractors are using.

Don

[DonMirabito]

And apparently no one is using much of anything right now...oh well...

Don

[David Meiland]

I use a contract written by one attorney and then revised by another. It has been reviewed by other attorneys on occasions when my clients have had that done. I've read a lot of construction contracts and mine is straightforward, easy to read, fair, etc., and definitely not breaking any new legal ground. It calls for mediation/arbitration in case of a dispute. If it ever comes to that, hopefully the mediators and arbitrators will straighten us out and send us on our merry ways. It affords absolutely no role to the architect whatsoever.

[Dick Seibert]

Don:

Your attorney is giving you good advice, in fact any good attorney will advise his clients not to write their own contracts or even have an attorney write their contracts, to only use an industry standard contract that has been well litigated, and the industry standard contract is the AIA. Litigating a non-industry standard contract will cost more money than any of us has, plus you'll spend the next several years in depositions explaining what you meant with every word and sentence, over and over again.

I've been telling guys that here for the last 10 years and nobody listens, everyone wants to write their own contract, those are usually so one-sided that any judge is going to throw them out so it's better to have nothing rather than a bad one.

[JohnCR]

Dick, Is there an advantage to using AGC contracts? They seem to have some geared toward residential work although I haven't downoaded any to read.

John

[Allan Edwards]

Don:

Your attorney is giving you good advice, in fact any good attorney will advise his clients not to write their own contracts or even have an attorney write their contracts, to only use an industry standard contract that has been well litigated, and the industry standard contract is the AIA. Litigating a non-industry standard contract will cost more money than any of us has, plus you'll spend the next several years in depositions explaining what you meant with every word and sentence, over and over again.

I've been telling guys that here for the last 10 years and nobody listens, everyone wants to write their own contract, those are usually so one-sided that any judge is going to throw them out so it's better to have nothing rather than a bad one.

Dick:

I would agree and disagree. If a contract is extremely one-sided, there is the potential of it being completely disregarded by a court. However, if a contract is drawn by a competent construction law attorney, I have no doubt it would hold up in court. This happens all of the time.

[David Meiland]

My attorney's opinion was essentially the same. Clear, simple, fair contract would not be subject to lengthy dispute over wording etc., fair value of work performed and compensation received would be primary regardless of wording. Small-time operators like myself are not allowed to reshape public policy re consumer affairs by writing new and innovative contracts. I am not building nuke plants, chip factories, and hospitals as Dick was.

[Dick Seibert]

There has been a long effort to standardize construction contracts with Consensusdocs, unfortunately the AIA pulled out, note that the AIA is conspicuous by their absence. Here is Consensusdocs' rationalization, that being said, if there is a architect and he wants to use the AIA I'd go ahead because ambiguities will be interpreted in my favor, otherwise I'd use the Consensusdocs' contract (which have replaced the AGC) .

I understand that long association contracts are sometimes overkill for small jobs, California has 8 pages of notice requirements for home improvements I just copy those filling out the blanks and putting the price and terms in where they are called for. After spending many hours researching applicable law and creating the document, I went to the law library after the first of every year and modified things by the highlighted changes, I haven't done that the last few years and am way behind without the benefit of highlighted changes going from year to year.

There is something to be said for a real simple document, on commercial where there are no home improvement requirements and no architects or engineers, I've written a one page simple contract, one time the owner ran it by his attorney who wanted a hold harmless and indemnification clause from me, I pasted in the AGC subcontract hold harmless and indemnification clause, then their attorney and mine argued for a week over one word in that., that one word cost me $700 for my attorney to review.

State laws are different, always get advice from your attorney and follow it.

[DonMirabito]

Hmmm...

I guess I'm going to have some additional discussion with my attorney about what form of contract I use. In some ways its really a moot point in that I don't ever intend to let myself get involved in a lawsuit. IMHO its almost always easier to just fix their complaint than to pay attorney's to piss on each other while I pay their fees.

Don

[Dick Seibert]

Don:

You do seem to understand one thing, that contracts are only collections of legal clauses used for litigation, other than price and terms they should be put away and never seen again, hopefully. Any job specific information should be in the plans and specifications, there should be a clause in the contract incorporating the plans and specifications provided by John Doe dated xx/xx/xxxx are hereby incorporated by reference¹.


¹ http://www.marlowemcnabb.com/resourc...orporation.cfm