I appreciate Mr. Littman's comments and, for the most part agree. Another thought, with regard to the AIA serving its base and the possibility of providing the documents for free. Perhaps providing the documents could be connected to the educational requirements. I am registered in several states (more than 20) the only one that I am familiar with that requires specific learning units regarding its building code is Florida. This makes much sense to me as compared to the accumulation of multiple points for various 'educational opportunities' typically provided by vendors. Suppose the AIA were to require 2 to 4 learning units per year with a focus on legal contracts. A 'ladder' system could be established allowing, over time, members to receive a better education with regard to the legal issues involved in the profession. Starting with the basics and building with more detail as a member progresses through his or her career. This would have a huge advantage with regard to our profession's understanding of our legal requirements and put us, as an industry, in a better position to make our case and negotiate appropriate terms. It would help to avoid putting an architect with a good understanding at a 'competitive disadvantage' to one who does not and may agree to contractual terms that are not, for lack of a better term, fair. Understanding and being able to articulate contractual issues results in more fair agreements. Too many professionals simply rely on the AIA documents, their attorney's advice, or "ignorantly' yield to a client's contractual demand rather than clearly understand the possible ramifications.
Francis X. Watkins AIA, NCARB
President
Bignell Watkins Hasser
Architects, PC
One Park Place
Suite 250
Annapolis, Maryland 21401
Washington Metro (301) 261-8228
Annapolis (410) 224-2727
Baltimore Metro (410) 841-6595
------Original Message------
In past I have written to AIA national directly regarding AIA contract forms… and encouraged them to take a ‘long game’ view that is in direct opposition to how the issue has been treated in the last decade or so. I have also written about this on various LinkedIn discussion boards and other fora.
In short – instead of chasing short term profits from use of AIA formats, the entire set of documents should be provided to members gratis, and to others on a nominal basis. I will explain my reasons below.
It is interesting to note that despite having written to national, on more than one occasion, I have never received a direct response, or acknowledgement that my memos were received. This lack of common courtesy to a constituent is not a positive indicator that national views its individual members as being important.
The point I tried to make to AIA on this particular issue is simple, and needs some historical context. The AIA formats were first widely used and became the industry standard at a time when there were no competitors. Now there are several other groups that compete for 'standard’ contract format dominance. As a result the AIA is losing (or has already lost) its leadership position in this area.
Because forms became more costly over time they were bootlegged by designers, owners and builders (simply because it is so simple to cut and paste or 'borrow' language from them, or to re-use old contracts making hand-markings and copying, etc.). Attorneys also regularly borrow language from AIA formats, incorporating them into formats they generate for their clients. I can't tally the number of contracts I've seen over the years that were either obvious 'stolen' forms or patch-worked contracts with provisions directly copied from AIA formats.
The reality is that AIA does not seem to have any interest in chasing violators of its copyrights. Doing so would be costly, unwieldy, and likely do little but annoy everyone in the industry. Additionally, because the AIA has not ‘enforced’ its copyrights diligently in past, it might not prevail in any single attempt to do so now. Thus the idea of the AIA forms being copyrighted is, frankly, a joke.
Yes, it does cost $ for the AIA's legal team to create and update the contract forms as design/construction law evolves (a never-ending process). But, with 80,000 members, the actual cost of supporting those efforts would seem to be a small amount per member annually. Without knowing more about the internal costing for the program, I can only say that it appears the AIA looks at its contracts primarily as a profit center (making more through sales than is required to actually support the cost to produce the forms). As AIA contract costs (to members and others) increase, industry players are more inclined to consider using forms promoted by other organizations... and the AIA loses more market share.
I think the AIA would be well served to look at this from a different perspective. By giving away the forms to members, and charging more reasonable rates to non-members, the AIA would directly encourage use of AIA formats over competing formats. The long game would be to re-bolster wider utilization of AIA forms, increase the AIA's 'image' as the dominant player, and ultimately garner greater benefits for the AIA membership at large.
Keep in mind that purportedly the AIA’s mission is to increase the professional image and status/power of Architects, such that they will continue to be seen as leaders (and indispensable advisors to owners of property). I do not know to what extent the AIA’s contract program is a net profit center… but in my opinion it should be viewed first with an eye toward how it advances the association’s long term objectives, not in terms of any short term economic advantages.
The questions I ask myself are why other organizations have made so much headway ‘against’ the AIA’s original domination in the contract field, and how can the AIA re-assume it’s unquestioned leadership position. Free use of contract forms as an integral membership benefit should definitely be on the radar. This would bring membership benefits more in line with other organizations to which I have belonged over the past 50 years in this field. Making AIA formats available to all industry players on a nominal basis – attorneys, contractors, et. al. – would seem to be a natural pathway to pursue.
Every time a competitor's format is used, AIA members suffer by consequence (loss of image). If the AIA is serious about repositioning, and returning Architects (with a capital A) to their once-envied pedestal position, it should seek to again ensure that architect-friendly contracts are to the greatest extent entrenched as the industry default. Doing so would be positive for all members, be great PR focused on non-member architects and other industry players, and speak volumes to owner consumers and attorneys.
Not mentioned above, but an important factor in members’ contract negotiations with Owners is that every time a non-standard AIA contract is proposed by a client it forces the Architect to spend money on attorneys (for review/editing and participation in resolving disputed provisions). It is a direct bottom line consideration for every member when an Owner or attorney says they prefer a non-AIA format. For this reason alone, the AIA should do what it can to ensure that using AIA formats is the most convenient and affordable option for all. Ease of acquisition, use, editing and formalizing should be optimized.
As to the subject of the original post here, I cannot understand why forms are not made available in more than one platform – hard copy, form download for future use at discretion, editable off-line use, as well as the newly-proposed cloud use for those that prefer that platform. I have not seen any responses from the association as to why members should be forced to use a platform that is the preference of the administration but not the membership at large.
I have seen one recent response that focused, for the most part, on one factor – an assurance that the cloud is ‘safe’. This is something that I cannot take to heart in light of the fact that in recent years we have been reminded repeatedly of breaches and system failures of even top secret security systems. The only other justification was compatibility concerns (PC v. Mac), which would seem to be non-drivers in a world where conversion software is readily available. I will not pretend to be an IT expert, but these two factors would not appear to justify doing anything that is not first desired by, and supported by the majority of users. Based on posts so far, I do not see many members indicating they are thrilled by the idea of cloud-only use… but I have seen logical concerns (including legal implications) that should be at the top of the list. I, for one, do not do any cloud computing (contrary to the post’s supposition), for security reasons. I simply do not like the idea that anyone might gain access to my personal/business documents or information via the cloud – by design or hacking. Call me a dinosaur, but I think that should be a choice I make for myself, not one that another makes for me.
On a last note, it would seem that the ‘program’ of continuous tinkering/changing of the system is what has driven its costs upward. I wonder why, if older/simpler methods worked for the majority, why changes were needed. The old adage is still relevant – if it ain’t broke don’t fix it.
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Howard Littman AIA, Emeritus
Forensic Architect, Expert Witness
Howard I. Littman, AIA
Agoura Hills CA
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