Change #7- Contractor’s Means & Methods (law note)

construction workers variousCounting down the most important changes to the AIA A201 contract document  [for Change #8, click here], today we will discuss the Contractor’s Means & Methods, which is #7 in the countdown.

First, a little history:  as you know, means, methods, techniques, sequences, and procedures are all part of the Contractor’s responsibility on a construction site.  However, when the AIA A201 was last revised, in 2007, there was a provision put in for that rare time when the Contract Documents gave specific instructions concerning a particular construction method.  If the Contractor viewed such instructions as unsafe, he was to give notice to the Owner and Architect, and was not to proceed with that portion of the Work without further written instructions from the Architect.  If the Architect directed him to proceed, the Contractor was absolved from any risks with following that instruction.  Instead, the Owner assumed the responsibility for any loss or damage.

In the 2017 version (in Section 3.3.1) a slightly different approach was taken.  The Contractor still has the sole responsibility for construction means and methods.  However, if the Documents provide for a specific instruction which is unsafe, the Contractor is to give notice to the Owner and Architect, AND propose alternative means or methods.

The Architect then must evaluate the proposed alternative solely for conformance with the design intent for the completed construction.  Unless the Architect objects to the proposed alternative, the Contractor is to perform the Work using the alternative it proposed.

Take away tip here?  Make sure that you timely evaluate any such alternative proposal!

Up tomorrow: Change # 6:  Notice Provisions.  Until then, stay frosty!

 

 

Contract Change #8: Direct Communications between Owners and Contractors (law note)

talking headsContinuing our 10 part series on Changes to the General Conditions of the Contract (AIA 201) [for the previous post, click here], Change #8 has to do with direct communications between the Owner and the Contractor.

As the Engineer or Architect of Record, you probably have frequently experienced Owners and Contractors communicating directly, in direct contravention of the language of the contract that requires them to endeavor to route all communications through the design team.  With the latest version of the 201, direct communication is now authorized, to recognize both the reality of what was happening on the ground and to recognize that sometimes Owners and Contractors may need to communicate without waiting for the design team.

In the new Section 4.2.4, Owners & Contractors are only required to include the Architect in communications that relate to the professional services of the design team.  HOWEVER, the Owner is required to promptly notify the Architect of the substance of any such direct communication.  The Owner-Architect agreement has been changed as well, to make it consistent with this new AIA 201 procedure.

Is this a good change?  Honestly, the verdict is out on that one (pun intended).  It may prove very helpful in keeping a project on track when the Architect is not regularly on-site.  However, the parties run the risk that they may make decisions that do effect the design team, without design team input.  Be cautious, and make sure the Owner *does* keep you informed.

Up tomorrow, Change #7– Contractor’s Means & Methods.

Contract Change #9: Owner’s Right to Carry Out the Work (law note)

construction workerChange # 9 to the AIA A201 General Conditions has to deal with the Owner’s Right to Carry Out the Work.  [Click here for the previous post on AIA Contract Changes.]

In prior versions of the General Conditions, if a contractor defaulted and the Owner (after giving notice) opted to cure by carrying out the work itself, an appropriate Change Order would be issued.  However, a Change Order is a contract that requires an agreement by both the Owner and Contractor, and, obviously, Contractors were reluctant to agree that they were in default and responsible for a deductive change order.

The new Section 2.5 allows the Owner to carry out the work if the Architect approves, without a signed change order.  Instead, the Architect can withhold or nullify a payment to the Contractor (under Section 9.5.1) to reimburse the Owner for the work carried out.

If the Contractor disagrees with the actions of the Owner or the Architect, or the amounts claimed as costs to the Owner, the Contractor can institute a Claim under the Claims section (Article 15) of the 201.

Up tomorrow, Change #8– Direct Communications on the Construction Project.

Contract Change # 10:   Differing Site Conditions (law note)

mud slide site conditionsAs promised in my note yesterday, today begins the first in a 10 part series on the most significant changes to the AIA A201, General Conditions to the Contract.

I’ll take the changes in reverse order, a la David Letterman…..

Change #10:  Differing Site Conditions

Previously, the A201 required a Contractor to provide notice to the Owner and Architect within 21 days after discovery of unforeseen site conditions.  This notification is required prior to the conditions being disturbed, so as to allow the Design Team the ability to evaluate the site and determine the compensability of any such differing conditions.

The requirement has been shortened to 14 days — that is, under the 2017 version, a Contractor must give the notification within 14 days of discovery.   See Section 3.7.4.

This is a small contract adjustment, but could prove substantially deprive a contractor of potential additional sums if caught unawares.  As the Architect or Engineer of Record, you should also be aware of this new 14 day requirement, which is a week shorter than most AIA deadlines.

Stay tuned for Change # 9, dealing with the Owner’s Right to Carry Out the Work, in the next post.

 

Photo courtesy NPS.

 

Like Death and Taxes, AIA Contract Changes are a Sure Thing! (law note)

AIA Contract ChangesLike death & taxes, you can count on the American Institute of Architects (AIA) to regularly update their standard form construction contracts.  Most such forms are updated every 10 years, and 2017 was no exception.

In the 2017 version, the changes are “evolutionary, not revolutionary”, according to AIA Managing Director and Counsel, Kenneth W. Cobleigh.  Ken and I both recently spoke at the North Carolina Bar Association’s Construction Law Forum on various AIA changes.

Over the course of the next two weeks, I’ll be presenting a 10 Part Series on the Top 10 Changes that you need to know about the AIA A201 General Conditions.

Stay tuned for Part 1, on Differing Site Conditions, which will be posted tomorrow morning.

 

Picture adapted from Investment Zen, with thanks.

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