Claim” to be delivered only to the designated representative of the other party by certified or registered mail, or by courier providing proof of delivery. Other required notices may be delivered by electronic transmission if such a method is included in the Contract. Section 1.1.8 contains the definition of the “Initial Decision Maker” (IDM), the person the parties have agreed will first render a decision on disputes. Usually, the IDM is the Owner’s Architect. This definition has been modified to delete the IDM’s authority to certify to the Owner that cause exists to terminate the Contractor “for cause.” (This authority continues to reside with the Architect under Section 14.2.2.) A new sentence added to the IDM definition requires the IDM to be impartial in disputes brought before him as IDM. It also absolves the IDM from liability for interpretations or decisions rendered in good faith. New Section 1.2.1.1 provides that if a provision of the Contract Documents turns out to be unenforceable or illegal the offending provision “shall be revised” to the extent necessary to make the provision legal. Section 1.7 deals with the use of digital data and the transmission of it. This section has been changed to require the parties to agree upon protocols governing the transmission and use of the Architect’s drawings and specifications and other digital information. Should these protocols not be put in place any use or reliance on a building information model shall be at the using or relying party’s sole risk. Articles 2 (Owner), 3 (Contractor), 4 (Architect), 5 (Subcontractor) and 6 (Construction by Owner or by Separate Contractors) each describe the rights and obligations of the parties, architect, subcontractors and separate contractors generally, but certain rights and obligations are covered in greater detail in Articles 7 through 15. Under Article 2 the Owner still has the obligation to furnish the contractor with proof of financial arrangements to pay for the project if: (1) requested by Contractor in writing before commencement of the work; and (2) if such arrangements are “materially” varied after the Owner initially discloses the financial arrangements. Note, however, that the new 2017 GCs have been reworded with respect to Owner’s disclosure obligations after the work starts. Owner must still disclose financial arrangements if Owner fails to make timely payment when due and also if a change
order materially changes the amount of the
of Contractor’s written notice of a “differing
The 2017 AIA General Conditions do not constitute a radical modification of the existing 2007 General Conditions; however,
the new GCs do significantly affect certain procedural requirements in the event of a dispute. Lawyers involved in advising and representing Owners, Contractors, Subcontractors and Architects should become familiar with the revised requirements to benefit their clients and the courts hearing construction disputes.
contract. The new language further obligates Owner to furnish such information only if “Contractor identifies in writing a reasonable concern regarding the owner’s ability to make payment when due.” What is a “reasonable concern” is not defined, so this revision may lead to significant disputes. (Note that if Owner fails to furnish financial arrangements within 14 days of the written request the Contractor may suspend the work under § 2.2.2 and is entitled to a time extension and the “reasonable costs of the shutdown, delay and start-up, plus interest as provided in the Contract Documents.”) Also new is subsection 2.2.4 authorizing Owner to designate the financial arrangements disclosed to the Contractor as “confidential” except as may be necessary to obtain performance of subcontractors and other necessary parties. Several changes to Article 3 (Contractor) should be mentioned. Section 3.3 covering “means and methods” of performing the work has been modified. The AIA has deleted a clause which limits Contractor responsibility over means and methods in the event the Contract Documents themselves “give specific instructions concerning these matters.” This deletion may lead to greater Contractor risk of liability for jobsite injuries resulting from Owner-specified means and methods. Further, jobsite safety is now completely delegated to the Contractor under revised Subsection 3.3.1. Article 3, Section 3.5 concerning the Contractor’s warranty obligations has been expanded to include a requirement that “material, equipment or other special warranties required by the Contract Documents” must now be issued in Owner’s name or must be transferable to the Owner. Another modification of Article 3 is the reduction in time
site condition.” Under Subsection 3.7.4 the time for such notice is 14 days rather than the 21 days as stated in previous Versions of the A201. Section 3.7.4 has also been modified to specify that a Contractor claim of a differing site condition which has been denied by the Architect is an Article 15 “Claim,” which must be presented to the IDM for resolution following the Architect denial. Likewise, if the Architect decides that there is a differing site condition and the Owner disagrees, the Owner must pursue it as an Article 15 Claim as well. Perhaps this makes sense if the IDM is someone other than the Architect. Where the Architect is the IDM, however, this additional step makes little sense. Section 3.10—Contractor’s Construction and Submittal Schedules—has been modified to require the Contractor to provide greater detail in the construction schedule, including interim milestone dates, apportionment by construction activity and the time required for completion of each portion of the work. Previous versions of the A201 did not include these schedule requirements. These new requirements should benefit all parties involved in the progress of the work. In view of these more specific schedule requirements it is suggested the AIA may move to CPM (Critical Path Method) scheduling in the next revision of the A201. CPM scheduling is now the standard for a great many construction projects. Section 3.12—Shop Drawings, Product Data and Samples—has been modified to delete language protecting the Contractor in the event design criteria specified in the Contract Documents by the Owner or Architect are inadequate. The last sentence of the 2007 version of the A201 document at Subsection 3.12.10 read, “The Contractor shall not be responsible for the adequacy of the performance
Vol. 53 No. 2/Spring 2018 The Arkansas Lawyer
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