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D4COST Software



 

A Growing Family: My Secret Life with ConsensusDocs over the Years
By Matthew J. DeVries

I am a construction attorney. I am happily married. My wife and I have seven children. This is the story about my secret life with another growing family.



Our First Date
I first started seeing ConsensusDocs in 2009. I had heard about her a few years prior, but I didn’t talk to my other construction attorney friends about her. I will admit it—I was going out with that other set of contract documents. Why? Because, well, that’s what everyone did. But I am an open-minded person. I will try anything (well, almost anything) once. So, when the opportunity arose for the right project, I was happy to take ConsensusDocs out on a date … a trial run so to speak. I was even happier to learn that, at that time, ConsensusDocs offered a metered account that allowed me access to all of the documents, while paying for only the final product. I thought that one final set of contract documents on the project for one low price was a good deal. So I loaded up the account with a couple hundred dollars and started what would be an ongoing relationship.

We hit it off from the start, and I dated the metered account for a number of years. Due to the full library of documents available, she served me and my clients’ purposes well. At the time, my construction law practice consisted of representing primarily small- to medium-sized contractors and subcontractors. The projects ranged from retail build-outs, hotels, schools, multi-family developments, water treatment plants, and the occasional Music City Center in downtown Nashville, Tennessee.

Why ConsensusDocs?
This new set of contract documents was very attractive for a number of reasons:

  • As of the date of my confession today, ConsensusDocs has a comprehensive catalogue of over 100 form contract documents, including a standard lump sum agreement, design-build agreements, joint venture agreements, change orders, collaborative agreements, BIM and green construction, and many more (www.ConsensusDocs.org/Catalog).
  • ConsensusDocs are the only standard contracts developed by a diverse coalition of 40 leading associations with members from all stakeholders in the design and construction industries, including designers, owners, contractors, subcontractors, and sureties (which, coincidentally, makes up the DOCS in ConsensusDocs). In this aspect, the documents seek to protect the interests of the project, as opposed to one particular party.
  • As I am advocate of the written word, I appreciated that ConsensusDocs incorporated a concise, English style of writing (no legalese) which provided clearer contract interpretation and project administration.
With ConsensusDocs, I had a new set of fair, even-handed construction contracts that I could tailor to the particular project, circumstance, and client.



Growing Family
The longer we dated, the more our relationship grew. ConsensusDocs has consistently responded to the industry in a timely matter with new agreements that address a multitude of contracting issues or project types. Following are just three examples:

1. On June 11, 2009, ConsensusDocs released what was reported to be the first and only standard contract designed specifically for federal government construction projects. The ConsensusDocs 752-Subcontract for Federal Construction Projects provided all of the necessary terms and conditions essential to comply with the Federal Acquisition Regulation (“FAR”). In addition to being FAR-compliant, ConsensusDocs 752 included all of the federally-mandated flow-down provisions, and the release was particularly important in light of the then-pending Federal stimulus funding bill.

2. On November 10, 2009, ConsensusDocs released its much-anticipated 310 Green Building Addendum. When I first blogged about its release, the release had an entire blogosphere of architects, engineers, owners, contractors, LEED AP-ers, and attorneys excited. The document incorporated a set of new terms, such as “Elected Physical Green Measures” and “Elected Green Status.” There was a new contractual party, called the “Green Building Facilitator”, who was integral to the green construction process. Finally, the document included a meaty “Risk Allocation” to address issues such as: (a) the role of the contractor during the process, as well as a provision that limits the contractor’s responsibility for performing certain services; (b) a waiver of consequential damages, which is the provision that every green attorney will want to take a look at first; and (c) a general limitation of liability provision that addresses the failure to attain the targeted status, as well as the failure to receive any intended benefits to the environment.

3. On March 28, 2013, ConsensusDocs released the 498 Design-Build Teaming Agreement, which provided a standard contract for parties desiring to form a team for the purpose of submitting a bid on a design-build project. The agreement has the flexibility for team members to include design professionals, contractors and other parties. One team member serves the role as team leader for the purposes of compiling and submitting the proposal, as well as for negotiation of the owner agreement, if awarded. Critical issues – such as confidentiality, withdrawal from the team, and document ownership – are included. Post-award considerations are addressed, and team members are required to enter good faith negotiations for a subsequent agreement covering the work, such as a joint venture agreement (ConsensusDocs 298) or a joint venture operating agreement (ConsensusDocs 299).

More recently, ConsensusDocs released its 301 BIM Addendum. This addendum revised its 2008 document for building information modeling (“BIM”) to include updated terminology and best practices within the BIM world.

A Digital Makeover
While I was happy with the metered account, it was often difficult describing its utility and benefit to my clients who wanted to work directly with the document among multiple users. Our review and edit process at that time often included emails or faxes back and forth, with me or my assistant handling the final work product. Then, on April 23, 2012, ConsensusDocs released a new tool allowing for online collaboration. When I first saw her come to the door, she looked stunning!

In full disclosure, I was one of the beta-testers for the ConsensusDocs online portal. (Is that like knowing the girl is going to say “yes” before you ask her out?) During my beta-testing period, though, I only found good things. The portal offered around-the-clock access; easy editing; easy collaboration among multiple users; ability to convert, compare and track changes; and new legal commentary and user guides for the online documents. Neither my client nor I had to be in the office to access the working documents. I controlled the editing rights and could invite anyone with an email address and internet access to the party. With document control tools, I could easily track versions and edits before making a final draft. And, depending on the size of your organization, you can purchase single or multiple-user licenses.

Looking Back
I have used ConsensusDocs on more than 20 projects over the past seven years. My clients have included owners, contractors and subcontractors. Of course, through the review and revision process online, I have been able to negotiate and edit more owner-favorable provisions when I represent an owner, or more contractor-favorable terms when I represent a contractor. All in all, it’s been a great relationship and I look forward to growing with the ConsensusDocs family. Just don’t tell my other family!

About the author: Matt is the Chair of the Construction Practice Group at Burr & Forman LLP, where he focuses exclusively on construction law and business litigation. Matt lives in Nashville, TN, and is the founder of www.bestpracticesconstructionlaw.com. You can reach the author at mdevries@burr.com

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