A Field Guide

Written contract forms grow by mistakes. Contracting parties, particularly owners and architects, discover that some issue or dispute was not covered to their satisfaction.

The next draft of the contract is supposed to take care of that perceived gap. The results of this process are complicated documents, with cross-references and qualifying language. Of course, the burden is on you, the contractor, to understand all of these matters and comply with all stated requirements. In an effort to ease the task of knowing how various clauses work together, the following synopsis has been prepared as a checklist and ready reference with regard to a standard AIA general contract form (AIA A201 1997).

Your contract may not be AIA, or be a different version entirely. This synopsis remains a help for you for comparison purposes and to enable you to analyze your particular circumstances. Advice of counsel on this matter is always recommended.

2.1.1 Architect/engineer does not have authority to bind the owner. Here, owner’s approval or authorization is at issue

2.3.1 Owner may issue a stop work order

2.4.1 Owner sends seven-day notice of default + owner may correct deficiencies ? Change order shall be issued. “Such action by the Owner and amounts charged to the Contractor are both subject to prior approval of the Architect.”

3.2.1 “before starting each portion of the work” contractor is to study contract

“Any errors, inconsistencies or omissions discovered by the Contractor shall be reported promptly to the Architect as a request for information ...”

3.2.3 if Contractor believes additional cost or time is involved “because of clarification or instructions issued by the Architect in response to the Contractor’s notices or requests for information”—claims per 4.3.6/4.3.7

3.3.1 if Contractor discovers unsafe conditions ? timely written notice to Owner and Architect “and shall not proceed with that portion of the work without further written instructions from the Architect.” (With changes proposed by the Contractor)

3.5.1 warranty runs to Architect. Architect has the right to require Contractor to provide evidence of kind and quality of materials

3.8.1 allowances: items to be supplied as owner may direct

3.8.2, .3 allowances: adjustment to contract sum via change order

3.10.1 Contractor schedule submitted to Owner and Architect for info

3.10.2 Schedule of submittals shall be prepared for Architect/engineer approval to allow “Architect reasonable time to review”

3.12.7 no work without submittal approved by Architect

3.12.8 Architect approval does not relieve Contractor of responsibility unless Architect specifically informed of deviation in writing and Architect has given written approval but Contractor is then responsible for errors in his submittals.

3.12.10 design-build components: “The Owner and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness” of Contractor’s design professional

3.18.1 Contractor indemnity for owner + Architect/ engineer: personal injury/property damage

4.1.2 Architect/engineer’s responsibilities cannot be changed without written consent of owner, contractor and Architect/engineer

4.2.2 Architect/engineer site visits to keep owner informed

4.2.5 Architect/engineer reviews + certifies amounts due to Contractor

4.2.6 Architect/engineer authority: (1) to reject work; (2) require inspection + testing, but no duty to Contractor 4.2.7 Architect/engineer review + approve submittals for general conformance with reasonable promptness “to cause no delay”

4.2.8 Architect/engineer will prepare change orders and construction change directives and may order “minor changes”

4.2.9 Architect/engineer to issue final Certificate for Payment

4.2.11 Architect/engineer interprets and decides matters regarding performance and requirements “on written request”—response in writing with reasonable promptness or 15 days

4.3.2 “Claims must be initiated by written notice to the Architect and the other party.” (Claims by either party)

4.3.4 Architect/engineer “will promptly investigate” differing conditions and “Will recommend an equitable adjustment to the contract sum” or:

° If no change, Architect/engineer to notify “in writing” “Stating the reason”

° objections within 21 days

° if Owner and Contractor can’t agree ? “initial” determination by Architect/engineer

4.3.5 Claims for additional cost —4.4.1

4.3.7 Claims for additional cost —4.4.1

4.4.1 Any claims (excluding hazardous materials) “shall be referred initially to Architect for decision.”

° decision “shall be required as a condition precedent to mediation, arbitration or litigation”

° unless no decision after 30 days

4.4.2 Architect to review claims and within 10 days:

(1) ask for more data

(2) reject

(3) approve

(4) suggest a compromise

(5) architect/engineer can’t or won’t decide

Nothing in writing

4.4.5 Approval or rejection of claims must be in writing— binding on both parties       EC

ITTIG, of Ittig & Ittig, P.C., in Washington, D.C., specializes in construction law. He can be contacted at 202.387.5508, USBuildlaw@aol.com or www.ittig-ittig.com.



About the Author

Gerard W. Ittig

Legal Columnist
Gerard Ittig, of Ittig & Ittig, P.C., in Washington, D.C., specializes in construction law. He can be contacted at 202.387.5508, USBuildlaw@aol.com or www.ittig-ittig.com .

Stay Informed Join our Newsletter

Having trouble finding time to sit down with the latest issue of
ELECTRICAL CONTRACTOR? Don't worry, we'll come to you.