TIPS FOR OWNER REVISIONS TO CONSTRUCTION CONTRACT DOCUMENTS

1. Contractor's Warranty
2. Contractor's Representations
3. Acceleration
4. Schedule
5. Indemnity
6. No Damage for Delays
7. Fix-It Warranty
8. Termination for Cause
9. Termination for Convenience
10. Arbitration (Consolidation)

Conclusion

Representation of the Owner in the construction process requires familiarity with any number of industry, governmental and institutional "standard" forms' attempts to describe the role of the parties in the design and construction process and allocate responsibility with respect to the "usual" areas of risk and controversy in addition to the predetermined legislative and judicial existing allocations. The place that counsel has an opportunity to protect his OwnerIClient and hopefully obtain and preserve an edge in the outcome when things go wrong is with the creation of private law that Owner's counsel may have an opportunity to craft in connection with the development of the construction contract documents. There are any number of industry standard forms as well as the forms developed by various institutional developers such as universities, other state agencies, the federal government, etc. available to Owner's counsel to use as a starting point. For purposes of this paper, I am assuming contract modifications relating to the American Institute of Architects 1997 form and in particular the A201 General Conditions form. There are probably a hundred or more changes that could be recommended to Owner's counsel for modification to this document alone depending upon the nature, size and complexity of the project but once again as a starting point I am offering only ten suggestions. Arguably these are my top ten, though that definition floats depending upon my most recent experiences.

Here we go with my top ten (or arguably top ten) tips for modifying AIA form A201, 1997 edition.

Never ever assume that an industry standard construction contract form is in fact the norm, is in fact standard or is necessarily evenhanded or balanced. Every "standard" form has its own constituency, its own bias, its own slant, its own contractual advantages both apparent and subtle. Be familiar with or read carefully or both any "standard form" that might be proffered and try to develop your own "top ten changes" in the process. You and your client will both be happier and better off for the exercise.

Full Text

This paper is available as a benefit of membership to Construction Law Section members. If you are already a member, just use one of the links above and enter your username and password when prompted. Here's how to join Construction Law Section and gain access to this material.

You must have the free Adobe Acrobat Reader 4.0 (or greater) installed in your computer in order to view or print this paper. It is available as free download from the Adobe Web site. If you do not have Acrobat Reader installed, click the link to the left to download it. If menu window opens before the paper, choose the "View" option.