October 4, 2023

Is short too short? This article tries to answer that question for construction contracts by delving into the major differences between short-form agreements and regular standard ConsensusDocs contracts.

Short-Form Contracts
Short-form contracts, such as the ConsensusDocs 205 short-form prime agreement, are known for brevity.  In general, short forms are used for smaller and less complex projects. At just 15 pages (versus the ConsensusDocs 200, which is 36 pages), the 205B covers the essential commercial terms in a construction agreement. By way of example, in ConsensusDocs standard contracts, while both the short and long-form standard prime agreements have a limited waiver of consequential damages provision, the ConsensusDocs 200 delves into greater detail about the interplay of liquidated damages and consequential damages. Additionally, specific owner carve-outs for both substantial completion and final completion are absent in the ConsensusDocs 205. Rather, the 205 has one generic blank as a carve-out to the waiver. Notably, the ConsensusDocs 205 makes no mention of liquidated damages.

Long-Form Contracts
Standard ” long-form ” agreements cover issues with more specificity and complexity. An important feature of the ConsensusDocs contracts is the integration of general terms and conditions with the agreement into one document. When factoring one document serves for two, they are already more concise than other standard documents. Therefore, labeling the ConsensusDocs standard forms as “long form” might be a misnomer.

The “long-form” standard contracts benefit users significantly by addressing a broader range of issues with more specificity and nuance. This is especially true of the more innovative provisions in ConsensusDocs. These provisions may help you cut off potential issues down the road on a project that you might not have anticipated at contract signing.

Many of the just-released revisions made to the ConsensusDocs general terms and conditions, detailed here, did not impact the standard language in the short forms.

Delegated Design: Significant Updates
The delegated design sections in the prime and subcontract agreements are one of the more significant revisions in the latest ConsensusDocs update cycle. Here, the differences between long and short-form agreements become evident. The short prime and subcontract standard forms omit delegated design. Certainly, users can use the Microsoft Word functionality that the ConsensusDocs Technology Platform to modify or add in these (or other) provisions, but they are not standard. The expanded-upon delegated design language creates a consistent standard of care for the delegated design that is also consistent with the standard of care of the overall project’s design professional. In addition, there are design coordination responsibilities required of upstream parties, while the downstream parties have to design to the applicable design criteria.

If you’re interested in exploring the latest additions to ConsensusDocs contact sales@ConsensusDocs.org or call 240-646-7082. To upgrade your subscription or add additional licenses to your account from the “My Subscriptions” page of your ConsensusDocs dashboard. Click on the green “UPGRADE PACKAGE” button and choose the package you would like to upgrade to from the drop-down menu. You will then be taken to a purchase page to pay for the upcharge; you will be charged a prorated fee based on the number of months left in your current subscription and the difference in price between your old and new subscriptions. Comments or questions about this article can be directed to Brian Perlberg, Executive Director and Senior Counsel, ConsensusDocs Coalition, at bperlberg@ConsensusDocs.org.