ConsensusDOCS and the Architect’s Role During Contract Administration

When doing some research for an article I was writing I read through some of the recently updated documents published by ConsensusDOCS.  Although I’ve heard rumors about how the ConsensusDOCS has changed the architect’s involvement in the construction process, I never really knew the details—until now. 

The two documents that I will focus on are the ConsensusDOCS 240, Standard Agreement Between Owner and Design Professional, and the ConsensusDOCS 200, Standard Agreement and General Conditions Between Owner and Constructor.  For brevity, I reference these documents  as “CD 240” and “CD 200,” respectively.

In the familiar AIA Document A201, General Conditions of the Contract for Construction, it states in Section 4.2.4 that “the Owner and Contractor shall endeavor to communicate with each other through the Architect.”  This is so the architect, who is responsible for construction contract administration per Section 4.2.1, is kept informed as to the issues involving the project.  However, the ConsensusDOCS documents virtually remove the architect (or “design professional” as used by ConsensusDOCS) from this intermediary role.  As a matter of fact, unlike the AIA Document A201, the CD 200 does not have an article that describes the “design professional’s” role in the administration of the construction contract—with rare exception in CD 200, the design professional’s role during construction is largely defined in CD 240, which the constructor (the term used by ConsensusDOCS in lieu of “contractor”) does not have access to unless the owner or architect provides a copy.

I’m not advocating or criticizing the ConsensusDOCS, but I just want to point out some of the differences—differences that I think actually reduce the A/E’s involvement and increase the owner’s.  Many owners are familiar with the services that architects typically provide, usually under an AIA agreement and general conditions.  However, if owners, familiar with AIA documents, use the ConsensusDOCS, they will find themselves more involved than they intended.

So, if you’re an owner and you plan to use ConsensusDOCS documents, are you willing to do the following?

• Request the contractor to uncover work so you can inspect it per CD 200, Section 3.10.1?  AIA A201, Section 12.1.2, indicates the architect may do this, which could be at the request of the owner.
• Require the contractor to uncover work that was supposed to remain visible by contract requirement for the owner’s observation per CD 200, Section 3.10.2?  AIA A201, Section 12.1.1, indicates the architect can request uncovering of work if either the architect directed the contractor to leave it uncovered for inspection or by contract requirement.
• Notify the constructor when the owner deems that any part of the work or worksite is unsafe and direct the contractor to stop work or take corrective action per CD 200, Section 3.11.6?  AIA A201 allows the owner to stop work if the contractor doesn’t conform to the requirements of the contract documents (Section 2.3), but does not mention safety-related issues.  Although CD 200 takes precautions by stating the owner may do so “without assuming responsibility for the Constructor’s safety program,” it has not been tested in court and could still add risk on the part of the owner.
• Review and approve submittals per CD 200 3.14.2?  CD 240, Section 3.2.8.1, states the design professional will review and make approvals of or recommendations about submittals to the owner within 10 days after receipt of submittals from constructor, but there is no direct response to the constructor.  Thus, the owner must return the approved submittals to the constructor with reasonable promptness (but not less than 10 days, obviously).  AIA A201, Section 4.2.7, states that the architect will “review and approve, or take other appropriate action upon,” submittals—timeframes are usually included in the specifications in Division 01.  An interesting side note is that according to CD 200, submittals shall be reviewed and approved—what if a submittal fails to comply with requirements?  AIA A201 allows the architect to “take other appropriate action,” such as returning them as “revise and resubmit” if a submittal fails to comply with requirements.
• Order changes in the work formalized in a change order per CD 200, Section 8.1.1?  CD 240, Section 3.2.8.2, indicates the design professional will assist the owner in the evaluation and processing of requests for changes, but not in the preparation of change orders, themselves.  AIA A201, Sections 4.2.8 and 7.2.1 indicates the architect will prepare the change order.  Some owners already do this, so this isn’t much of a change for those owners.
• Issue written Interim Directed Changes to the constructor per CD 200, Section 8.2.1?  There are no requirements in CD 240 for the design professional to assist the owner in preparing Interim Directed Changes, other than Section 3.2.8.2 mentioned above.  AIA A201, Sections 4.2.8 and 7.3.1, indicates the architect will prepare Construction Change Directives.
• Issue written orders to the constructor for incidental changes per CD 200, Section 8.5?  There are no requirements in CD 240 for the design professional to assist the owner in preparing incidental changes, other than Section 3.2.8.2 previously mentioned.  AIA A201, Sections 4.2.8 and 7.4, indicates the architect has the authority to order minor changes in the work.
• Adjust or reject a pay application, or nullify a previously approved pay application and notify the constructor of such per CD 200, Section 9.3?  CD 240, Section 3.2.8.5, indicates the design professional shall assist the owner in processing pay applications, to include certifying amounts due.  What is unclear is whether the owner can adjust or reject a pay application the design professional has already certified, or if the design professional certifies a pay application only after the owner makes adjustments, if any.  AIA A201, Section 9.5.1, allows the architect to adjust or withhold a pay application and to notify the contractor; there is no provision for the architect or owner to nullify a previously approved pay application.
• Conduct an inspection of the work, after being notified by the constructor, to determine if substantial completion is achieved per CD 200, Section 9.6.1?  CD 200 states that the design professional will assist the owner in the inspection, as well as in CD 240, Section 3.2.8.8.  AIA A201, Sections 4.2.9 and 9.8.3, indicates that the architect will perform the inspection to determine substantial completion.
• Prepare a list of items that need to be completed or corrected before substantial completion is achieved per CD 200, Section 9.6.1?  CD 240, Section 3.2.8.8, states that the design professional’s assistance includes compiling the list.  AIA A201, Section 9.8.3, does not require a list from the architect, but that the architect shall notify the contractor of items that need to be completed or corrected before a certificate of substantial completion can be issued.  As another side note, CD 200, Section 9.6.2, requires the constructor to prepare the certificate of substantial completion and a list of items that still need to be completed or corrected (i.e. punchlist).  There is no provision for the owner or the design professional to review this list prior to the constructor’s preparation of the certificate of substantial completion.
• Conduct an inspection of the work to determine final completion per CD 200, Section 9.8.1?  CD 200 states that the design professional will assist the owner in the inspection, as well as in CD 240, Section 3.2.8.9.  AIA A201, Sections 4.2.9 and 9.10.1, indicates that the architect will perform the inspection to determine final completion.
• Provide clarifications regarding omissions and errors in the drawings and specifications per CD 200, Section 14.2.2?  CD 240, Section 3.2.8, states that the design professional will respond to the constructor requests for information, but on interpretations and clarifications of the drawings and specifications, the design professional responds to the owner, and to the constructor, if directed by the owner (What if the request for information requires an interpretation?).  AIA A201, Sections 4.2.11 and 4.2.12, states that the architect will respond to requests of interpretation by the owner or contractor and make interpretations and decisions consistent with the intent of the contract documents.  A final side note, CD 200, Section 14.2.2, also states if there is a conflict between drawings and specifications, the specifications shall govern—no provision for interpretation by the design professional or the owner.  AIA A201 does not set precedence when there is a conflict between drawings and specifications.

Although the tripartite contractual arrangement described in CSI’s Project Delivery Practice Guide still exists with the ConsensusDOCS documents, the third-party obligations between the contractor/constructor and the architect/design professional is greatly diminished to the point where the architect/design professional is an appendage of the Owner rather than a lead in the administration of the construction contract.  As indicated above, the owner takes the lead and the architect/design professional becomes an assistant to the owner.

In my opinion, the ConsensusDOCS 200 has inconsistencies that will require correction.  AIA Document A201 has had a century of trial and error, which the ConsensusDOCS 200 lacks.  Over time I see the ConsensusDOCS 200 mutating to create a greater balance of responsibilities between all three parties, probably through its own trial and error process through the court system and personal experience.