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Some Construction Documents Are Not Contract Documents
It’s Important to Know the Difference
Arthur O'Leary, FAIA, MRIAI
 


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Contract Documents Defined.
There would be fewer disputes and less disappointment in the construction industry if all parties to construction contracts clearly understood their obligations and were fully aware of their obligations, rights, and privileges. These are to be found primarily in the contract documents. The term contract documents is uniformly used in all AIA standard form agreements to designate the group of documents that comprise the construction contract between the owner and contractor. The terms contract documents and contract may be used interchangeably.

The contract represents the entire and integrated agreement between the parties.

Owners and contractors, when making claims against the other, often will attempt to enforce the provisions of conversations, inferences of actions, and any scrap of paper developed in the course of their relationship. Similarly, architects will often search the documents seeking authority to compel the owner or contractor to perform some duty. However, only those documents and promises, that have been reduced to writing and incorporated into the contract, can be relied upon as being legally enforceable.

Which Are the Contract Documents ...
The AIA General Conditions of the Contract for Construction AIA Document A201 - 2007, includes a contractual definition of the contract documents in subparagraph 1.1.1:

"The Contract Documents are enumerated in the Agreement between the Owner and Contractor (hereinafter the Agreement) and consist of the Agreement, Conditions of the Contract (General, Supplementary and other conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract, other documents listed in the Agreement and Modifications issued after execution of the Contract. A Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by the Architect."

... And Which Are Not.
The same paragraph goes on to identify some documents which definitely are not to be considered as contract documents:

"Unless specifically enumerated in the Agreement, the Contract Documents do not include the advertisement or invitation to bid, Instructions to Bidders, sample forms, other information furnished by the Owner in anticipation of receiving bids or proposals, the Contractor’s bid or proposal, or portions of Addenda relating to bidding requirements.”

Furthermore, the General Conditions, in subparagraph 3.12.4, clarifies the status of shop drawings and other submittals:

"Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents."

More Non-Contract Documents.
In addition, by inference, the contract documents do not include numerous other documents commonly used in the construction contracting process. For example, all of the following are not contract documents:

Correspondence, e-mails, unsigned change orders, insurance policies, insurance certificates, performance bonds, labor and material payment bonds, title reports, topographic and boundary surveys, soil tests, material tests, laboratory reports, engineering calculations, environmental impact reports, materials certifications, inspection reports, subcontracts, purchase orders, payment requests, schedules of values, payment certificates, field observation reports, requests for information, requests for price quotations, cost breakdowns, price quotations, conference reports, certificates of compliance, manufacturers' literature, industry standards, guarantees, warranties, certificates of substantial completion, notices of completion, operating instructions, photographs, certificates of occupancy, mechanics' liens, lien releases, building permits, building codes, or zoning regulations.

The architectural services agreement is not a part of the owner-contractor agreement and is therefore not a contract document.

Any written agreements between the owner and contractor that pre-date the construction agreement are not contract documents unless specifically incorporated in the construction agreement. (A201 - 2007, subparagraph 1.1.2)

If the owner, contractor, or architect wish to consider any of the normally non-contract documents to be included in the contract, then it is a simple matter to so provide in the supplementary conditions or in the agreement before the agreement is signed, or afterwards as an amendment to the contract.

Two More Contract Documents.
In order to rise to the stature of a contract document, a writing must be agreed to by the owner and contractor and it thus becomes a part of the contract or an amendment to it. However, there are two notable exceptions to this general concept:

Construction Change Directives, which are signed by the owner and architect, but not by the contractor (A201 - 2007, paragraph 7.3), and

Architect's written orders for minor changes, which are not signed by the owner or contractor, but solely by the architect. (A201 - 2007, paragraph 7.4)

Both of these are contract documents by virtue of the definitions of Modification (3) and (4) in A201 - 2007, subparagraph 1.1.1, quoted above.

Oral Agreements are Contracts but Not Documents.
In general, the only obligations that can be enforced by the owner or contractor against the other are those that appear as a requirement in one of the contract documents. Likewise, no rights are acquired by either unless they are conferred by some provision of a contract document.

However, in practice, some actions or oral statements may serve to amend the contract, even though they are not contract documents. For example, an owner might ask a contractor to move a brick pier and agree to pay an additional $1250. After the contractor has removed and reconstructed the pier, the owner cannot then repudiate the oral agreement even though there is no related contract document. A dispute might arise if they do not peaceably agree to all of the unstated related details of construction, timing, and payment.

Enumeration of the Documents in a Contract.
Confusion in a specific contract can be lessened or possibly avoided by the careful enumeration of the documents which are to be considered part of that agreement. The AIA standard form owner-contractor agreements have blank spaces designated for the purpose of listing all of the relevant contract documents:

Article 9 in AIA Document A101 - 2007, Standard Form of Agreement Between Owner and Contractor where the basis of payment is a Stipulated Sum.

Article 16 in AIA Document A111 - 2007, Standard Form of Agreement Between Owner and Contractor where the basis of payment is the Cost of the Work plus a Fee with a Guaranteed Maximum Price.

Article 6 in AIA Document A107 - 2007, Abbreviated Form of Agreement Between Owner and Contractor for Construction Projects of Limited Scope where the basis of payment is a Stipulated Sum.

Important Advice
Contract law varies from state to state. The information in this article should not be regarded as legal advice. Confer with your legal counsel for advice regarding details of contracts and agreements.


A Guide to Successful Construction“A Guide to Successful Construction: Effective Contract Administration” by Arthur F. O’Leary, FAIA, MRIAI or “Construction Nightmare Jobs From Hell & How To Avoid Them” by Arthur F. O’Leary and James Acret are available from bookworkz.com or call DCD at 800-533-5680.

 

 

 


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