This is part 1 of a 15-part series on the changes to the AIA A201 General Conditions. This part deals with section 1.1.8.
In the 2017 changes, particularly section 1.1.8, there are some fairly significant changes to the Initial Decision Maker clause. The changes are as follows:
First, in my humble opinion, the whole Initial Decision Maker process is a bad idea. It usually ends up, by default, being the Architect under section 15.2.1 because people generally do not change the language and select a third-party. So, you basically have the fox guarding the chicken coop. The Architect, as the Initial Decision Maker, has a lot of control over the outcome of the dispute.
This scenario was attempted to be worked out by the language that “the Initial Decision Maker shall not show partiality to the Owner or Contractor…” but that does not fix the problem. How do you deal with a breach of this provision?
In addition, the second clause of the change provides that the Initial Decision Maker shall not be liable for the results or for the interpretations or decisions rendered in good faith. Here again, this is a demonstration of how the AIA documents protect Architects. There is no reason why the Architect should be shielded from responsibility regarding a contractual decision made as an Initial Decision Maker. There is also a question as to whether the second clause is even enforceable. You cannot release yourself from liability for negligence in advance. Nevertheless, without a crystal ball, this clause is probably going to be enforced.
My general recommendation is to strike everything in the AIA A201 General Conditions that has anything to do with the Initial Decision Maker process.
Steve Hilger is an attorney and partner at Hilger Hammond, PC. In Steve’s practice, he is routinely involved in extensive contract preparation and review including contracts in the construction industry, material purchase orders, vendor agreements, documents involving the Uniform Commercial Code, licensing agreements, and multiple other commercial contracts and related documents. You can reach Steve at sahilger@localhost.