Joel Sciascia, general counsel for the construction management company Pavarini McGovern, made some insightful comments in the Viewpoint section of the latest Engineering News Record magazine. He argues that architects should not be the initial decision maker (“IDM”) under AIA contracts. Instead of using the architect, Mr. Sciascia suggests the use of an independent dispute-resolution board.
In 2007, the AIA introduced a new concept into the A-201 documents through which the owner and contractor had the option of naming an independent third party to resolve disputes, instead of automatically allowing the architect to resolve disputes. But, if the parties did not select any specific independent decision maker, the architect would be considered the default initial decision maker.
Mr. Sciascia suggests that the AIA A-201 should be updatedto provide for a dispute resolution board that does not include the architect to decide the dispute. Mr. Sciascia contends that this would make the architect available as a witness for either party or the IDM, to assist with resolving the dispute.
Another point made by Mr. Sciascia is that the IDM must be required to make a decision. Under the current language, the IDM may make no decision. If the IDM refused to make a decision, I think all parties would agree that the entire exercise was a waste of time.
Finally, Mr. Sciascia suggests that the A-201 must require the parties to split the costs of the IDM. Given the potential cost of getting an architect, engineer, or attorney up to speed on a project could be expensive, it certainly makes sense to require the parties to split those costs.
Mr. Sciascia brings some common sense dispute resolution concepts to the table in his article. Only time will tell whether the AIA will think these common sense concepts should be added to the next version of the A-201.