From 1888 through 2007, general contractors and architects met and agreed on the standard construction terms and conditions that are in the American Institute of Architects’ (“AIA”) “family” of documents. The AIA documents are probably the most commonly used construction forms for building projects in the United States. The AIA, through its forms, seeks to strike a balance between the interests of the owner, contractor, and the design professionals. Borrowing a phrase from Fox New anchor Bill O’Reilly (Bill did not coin this phrase), the AIA documents seek to be “balanced and fair.” The AIA contracts shift and allocate risk with three philosophical tenets in mind: (1) controllable risk is allocated to the party best able to control the risk; (2) preventable risk is allocated to the party best able to protect against an unexpected cost (sometimes through insurance); and (3) if neither party can control or prevent the risk, it is shifted to the owner.
In 2007, the Associated General Contractors (“AGC”) parted ways with the AIA (the AGC no longer endorses the AIA documents) and published its own set of standard contracts that have been collaborated on and written by a coalition of 40 design and construction industry associations. The ConsensusDocs Coalition is committed to a “project-first” philosophy by writing contracts in plain English, incorporating best practices into the documents, and addressing emerging trends in its agreements. The ConsensusDocs Coalition has published a library of over 100 contracts and documents. For more information about ConsensusDocs visit its webpage at http://www.ConsensusDocs.org.
The ConsensusDocs are taking on more of a presence in the construction industry contracts. In 2013, ConsensusDocs made revisions and released new agreements addressing the latest trends in alternative dispute resolution. It also revised its federal subcontracts to reflect additional changes in federal regulations. Finally, as part of its mission to stay up-to-date and reflect current trends and practices, the Coalition released new agreements covering design-build methods in joint ventures.
1. Arbitration Clause
a. Statute of Limitations. There is a split in some jurisdictions interpreting how to apply the applicable statute of limitations to arbitration. In some states, the arbitrators must interpret the statute of limitations provisions in accordance with state law. In other states, since arbitrators are not bound to decide a case in accordance with state law, the arbitrators can ignore the applicable statutes of limitation. In a recent Washington case, the arbitrators ignored the statute of limitations and the Supreme Court upheld that award. In response, the ConsensusDocs Coalition revised its standard arbitration provisions to address how to apply the applicable state’s statute of limitations to arbitration. The coalition revised twenty-one of its ConsensusDocs contracts to reflect the change. The revised language now contains a “savings clause” in case it is unclear whether a claim must go through arbitration or the courts.
b. Addition of JAMS as Arbitration Administrator. The ConsensusDocs Coalition now also includes both the American Arbitration Association (“AAA”) and the Judicial Arbitration and Mediation Service (“JAMS”) as explicitly listed arbitration administrators in their standard construction contracts. JAMS is a private alternative dispute resolution provider with offices around the world. JAMS has a wide variety of experienced, neutral decision makers, including retired judges, offering their services to the construction industry, as well as all matters of other disputes. JAMS specializes in mediating and arbitrating complex, multi-party business and commercial cases. For more information about JAMS, visit its website at http://www.JAMSADR.com.
2. Mediation / Guided Choice
The ConsensusDocs Coalition’s documents, as with the AIA documents, require nonbinding mediation as a condition precedent to arbitration. Recently, in some areas of the country, mediation has evolved into what is now termed: “Guided Choice.” Guided Choice is a different approach to mediation; parties still select a mediator of choice using the Guided Choice method. The concepts utilized in Guided Choice are not new: the mediator communicates directly with all parties to identify the issues that require resolution and then the mediator customizes the negotiations to work toward resolving the specific conflicts. The ConsensusDocs includes instructions on how to implement the Guided Choice in its ConsensusDocs guidebook.
3. Federal Contracts
ConsensusDocs 752 presents a more streamlined form for subcontractors and general contractors on federal government projects. It now provides for certification of small business entities in new reporting of executive compensation requirements, as well as ensuring that the appropriate Federal Acquisition Regulations (FARs) flow down from the prime contract to the subcontractor level in a consistent manner.
4. Design-Build Joint Venture / Teaming Agreements
The ConsensusDocs also released a new design-build joint venture agreement and teaming agreement that reflects the current trend in construction to procure work on an alternative basis, such as design-build. The joint venture forms reflect the industry trend toward utilizing the design-build delivery method.
5. Dispute Review Boards
Finally, the ConsensusDocs Coalition also released two new standard contract documents to assist contractors and owners in implementing dispute review boards (“DRBs”). DRBs have a proven track record of resolving claims, and keeping construction projects on track and out of litigation. The ConsensusDocs Coalition’s new forms provide for establishment and operation of DRB panels, and a standard agreement among the DRB panelists, owners, and contractors that include ethical requirements of payment provisions.
 38 Construction Contracts Law Report, ¶ 20 (Feb. 14, 2014).
 Broom v. Morgan Stanley DW Inc., 169 Wn.2d 231, 236 P.3d 182 (2010). Effective July 30 of 2013, the Washington legislature amended RCW 7.04A.090 by adding a new subsection (3) which states: “A claim sought to be arbitrated is subject to the same limitations of time for the commencement of actions as if the claim had been asserted in a court.”