By Sean Calvert, Esq., Partner, Calvert Menicucci, P.C.
It always amazes me the changes a mere decade can bring in an industry that has been going strong for so long.
This past year I was working on the group that was drafting the new ConsensusDOCS 755 master subcontract form released this past July. The ConsensusDOCS 755, like the standard ConsensusDOCS 750, is at base an outgrowth of the old AGC 650 subcontract form. It has obviously been heavily modified since the days of the AGC 650 and 655 subcontracts to create the more balanced subcontract forms that ConsensusDOCS now publishes. Significant portions of the language and structure of the documents however come from those original AGC subcontract forms.
Working through the changes to the new ConsensusDOCS subcontract forms made me recall back to 2007. Anyone who was reviewing construction subcontracts from that time will remember the old AGC forms, in particular the AGC 655 form. ASA actually had a form addendum specifically designed for use with the AGC subcontract forms. The ASA bid proposal forms also used to advocate and call for the use of the AIA A401 form subcontract as the basis for all subcontract terms.
With the issuance of AIA’s 2007 forms and the lack of inclusion of other contracting industry input into those forms ASA elected to change the recommended subcontract from the 401 to the ConsensusDOCS 750. I believe the first revision of the ASA bid proposal and ASA short form and long form addenda was issued in 2009 to move to favoring the ConsensusDOCS forms. They still form the basis of the current ASA documents, which remain available through asaonline.com – Member Resources.
It is useful when negotiating subcontracts to remember this history. The AGC 650 and 655 subcontracts may be gone, but at the time they were the preferred form for use by contractors when they weren’t using their own even more onerous in-house contracts. While I don’t remember anyone ever advocating as a negotiating tactic at the time, proposing the use of an AGC 650 or 655 subcontract as an alternative to the contractor’s personal subcontract forms, that currently isn’t a bad option. Consider reminding the contractor that you are negotiating with, particularly if they are an AGC contractor member, that the ConsensusDOCs subcontracts are just the current modified versions of the old AGC forms. Many a general contractor’s contracting staff will remember the old forms and may have used them or based sections of their company forms off of the language from those documents. A trip down memory lane may just be the opening you need to discuss accepting more moderate contract language.
Even if you can’t convince your negotiating partner into using the ConsensusDOCS forms wholesale, consider looking to them for contract language that may be a more moderate approach where you are at a deadlock in negotiating language for a particular clause.
Sean Calvert, Esq., is a partner at Calvert Menicucci, P.C. in New Mexico. They provide services relating to contract documents, construction risk analysis and insurance coverage issues, procurement, bid/RFP protests, licensing and licensing disputes, copyright and intellectual property issues, project management advice and documentation, construction claim preparation, mechanics’ and materialmen’s liens, performance and payment bond claims and defense, as well as representing clients in dispute avoidance, administrative hearings, mediations, arbitrations and litigation in state and federal court. For more information, please visit http://www.hardhatlaw.net.
