Recently I was discussing the ConsensusDOCs with a colleague and friend and had a revelation. These forms are used often (though somewhat less than their AIA counterparts and less than they should be used). Quick disclaimer: I have been a part of a couple of drafting committees for ConsensusDOCs and am friends with Brian Perlberg, general counsel to the drafting effort.
Some of the reason that these forms are so widely used is that they can be applied in a general way to almost any situation. Both sets of forms have documents for small and large jobs. Both have forms for Contractor/Owner and Contractor/Subcontractor. In short, a form document exists for about any scenario.
I am writing now to let you know that while forms are great, they are just that. . . forms. Like with any set of forms, they need to be “tweaked” for your particular project. In my opinion they both have great clauses in them, and both have some flexibility built in (ConsensusDOCS more at the moment than the AIA forms). At the very least, construction professionals need to use this flexibility to conform the documents to their particular situation and do so within the documents themselves and not with addenda that “strike” or “modify” particular clauses.
Frankly, the use of such addenda over time can lead to a lot of work for a construction attorney and a lot of headaches for a contractor. Eventually, use of such addenda without thorough periodic review can lead to clauses that nest and are internally contradictory leading to disputes over what the document means. Such ambiguity and self-contradiction within the documents only leads to another layer between you and the key question: Who owes whom money and how much?
In short, clarity is key. Adequate clarity is achievable with the AIA and ConsensusDOCs forms (among others created by the AGC and other organizations). However, you must use the forms as they are written and for the purpose for which they were created. If you cannot get to where you want to go with these forms, then consult an attorney and collaborate with him or her to create documents that achieve the specificity that you need and the clarity that is a must.
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