New Consensus Standard Contracts Should Be Exciting
The construction industry often is painfully slow in addressing problems of critical importance. One of these sticking points is the proliferation of standard-form contracts by various organizations representing a specific interest in the design and construction process. It is safe to say that despite the best intentions of sponsoring organizations, the documents tend to expand the power of, or protect the interests of, a particular group's constituency. That necessarily becomes the starting point for parties on a project to heavily modify them to reflect their interests and that is about to change.
On Sept. 28, the industry will be treated to yet another set of standard documents, but this set will be a bit different. The 70-plus ConsensusDOCs were developed by 23 industry organizations representing owners, contractors, subs, sureties, insurers and designers. This collaborative effort makes success of the project the overriding objective and may in fact transform the way standard documents are used in the industry. According to the drafters, they will represent a consensus on best practices to achieve project results, reflect changes in technology such as building information modeling and provide more choices in dispute resolution.
The three-year exercise is refreshing in that all major industry associations were invited to the table. Not all accepted, but many of those that did are willing to abandon their own versions of standard documents in favor of the new ones. Notably absent from the discussions was the American Institute of Architects, which publishes its own popular set of standard-form documents, and plans to continue to do so.
Not all of the drafting organizations have yet ratified the documents, but most, if not all, are expected to. That takes time. It also will take time for the industry as a whole to study the documents, confer with legal counsel, try them out and develop a body of knowledge on what the documents can and cannot achieve.
Still, this is one of those rare times where much of the industry came together and attempted change. If successful, the effort may go a long way to cutting down the mountain of modified standard paperwork that has bogged down many projects and choked courts, arbitrators, mediators and disputes review boards. This has the potential of being something really big, if given a chance.