September 22, 2015
One provision that is unique to the A201 is the role of the Architect in determining disputes between the Owner and the Contractor. In §15.2, unless specifically stated otherwise, the Architect will initially decide disputes between the Owner and Contractor. This can be problematic for several reasons. The Architect will potentially be making determinations of disputes, even if the subject of the dispute is the architect’s own performance. §4.2.1 provides that the Architect “will be an Owner’s representative during construction.” §4.2.8 provides that the Architect “will prepare Change Order and Construction Change Directives, and may authorize minor changes in the Work,” and “will investigate and make determinations and recommendations regarding concealed and unknown conditions.” Therefore, the Architect will likely be deciding disputes that the Architect had a role in creating the dispute. Further, the Architect agrees to act in this role, there could be perceived pressure to make decisions in favor of the Owner who is paying the Architect.
Other problems arise from Article 15. After the Architect issues a decision, and as long as that decision does not relate to aesthetic effect, the parties must mediate, and then arbitrate or litigate. However, there is no requirement that either party allow the inclusion of the subcontractors in the determination by the Architect. It is often the subcontractors who are the real party interested in a particular claim. This is compounded by the flow down provision of §5.3.
All parties should consider whether, and to what extent they desire to allow the Architect to act in the role of Initial Decision Maker. The parties should also consider further defining the standard dispute resolution provisions of the A201.