Negotiating and Drafting the Most Important Construction Contract Provisions. A. Role of major form agreements, including AIA Contacts, in negotiations The construction process is complex and involves multiple parties and an extensive assortment of uncertainties. Accordingly, a well crafted construction contract should be comprehensive and should include a variety of provisions dealing with the various problems that might be encountered during the course of construction and thereafter. For this reason, most drafters of construction contracts start with an industry form that contains sufficient detail. The American Institute of Architects (AIA) has developed a series of forms that pertain to all of the various relationships in the construction process and cover a range of different approaches to construction including a variety of fee arrangements. The AIA forms are comprehensive and time-tested and represent a reasonably fair balancing of the relative risks, although some 3 Even a settlement agreement will not be deemed to be enforceable if it was made in contravention of the North Carolina licensing statute. observers maintain that the architect receives more favorable treatment under the AIA forms because they were developed by their own profession.4 In addition, the Engineers Joint Contract Documents Committee (EJCDC), Association of General Contractors and other groups have developed and promulgated similar forms. In 2007, Xxxxxxxxx DOCS issued a set of forms in response to some of the criticisms of the AIA forms.5 These industry forms, when used as a starting point, often represent the “default” position, and counsel for the parties must negotiate and draft any changes to conform to the agreement of the parties on a specific project. Because of their widespread use, the AIA forms are often viewed as representing what is “market.” Over the years, the AIA has made changes that have adjusted the AIA forms to changes in the marketplace.
