ConsensusDocs Procedures

ConsensusDocs Procedures

1. ConsensusDocs Mission

1.1 Mission

ConsensusDocs® is a coalition of associations representing diverse interests in the construction industry that collaboratively develops and promotes standard form construction contract documents that advance the construction process. ConsensusDocs and its Endorsing Organizations are committed to assuring that its documents serve the best interests of the construction project and the construction industry. These procedures are intended to further the ConsensusDocs mission by formalizing a transparent and efficient consensus-decision making process.

2. Representing Diverse Interests

2.1 Diverse Interests – General

ConsensusDocs is committed to ensuring that it continues to represent diverse interests in the construction industry. The Business and Marketing Advisory Council is responsible for identifying and recruiting new Endorsing Organizations.

2.2 Identifying and Contacting Prospective Endorsing Organizations

Current Endorsing Organizations should be alert to industry associations that have or should have an interest in achieving the ConsensusDocs mission. They should refer such associations, including appropriate contacts, to the Executive Director and Senior Counsel (“Executive Director”) and/or the chair of the Business and Marketing Advisory Council. In addition, the chair of each working group should submit the associations, including appropriate contacts, which such working group has identified as stakeholders in the working group’s product.

The chair of the Business and Marketing Advisory Council shall assign an individual to make an initial contact with each association identified. If such initial contact reveals an interest in further participation in ConsensusDocs, the Business and Marketing Council chair shall organize a delegation of representatives to meet with representatives of and/or make a presentation to the interested association.

The Executive Director shall maintain a log of identified associations and the status of their relationship with ConsensusDocs. The Executive Director shall distribute the log to the Business and Marketing Advisory Council prior to each of its in-person meetings.

2.3 Negotiating a Memorandum of Understanding

The Executive Director is charged with negotiating the appropriate Memorandum of Understanding with an interested association.

3. Advisory Councils

3.1 Advisory Councils

ConsensusDocs has two advisory councils, the Contract Content Advisory Council and the Business and Marketing Advisory Council.

3.2 Contract Content Advisory Council

The Contract Content Advisory Council is responsible for the development of standard form contract documents and for facilitating Endorsing Organizations approval of such documents.

3.3 Business and Marketing Advisory Council

The Business and Marketing Advisory Council is responsible for proposing business strategies and for recommending actions for effective education, marketing and media relations efforts.

3.4 Council Chairs

Each Council shall elect a chair from among its members at its last in-person meeting in each calendar year. A chair may be a representative of any Endorsing Organization. The chair shall serve a one-year term beginning at the end of the meeting at which he/she is elected through the last in-person meeting of the following calendar year. The chair shall serve as a facilitator (rather than an advocate) for the discussion and schedule of the Council. The chair shall ensure that all voices are heard, that minority opinions are respected, and that all work products further the mission of ConsensusDocs.

3.5 Recording Secretaries

Each Council shall elect a recording secretary from among its members at its last in-person meeting in each calendar year. A recording secretary may be a representative of any Endorsing Organization. A recording secretary shall serve a one-year term beginning at the end of the meeting at which he/she is elected through the last in-person meeting of the following calendar year. A recording secretary shall be responsible for keeping and distributing minutes of the meeting of the Council. The recording secretary shall distribute minutes of the meeting within ten days of a Council meeting.

3.6 Council Meetings

Each Council shall meet in person not less than twice each year. Additional meetings may be held by teleconference or other technology-enhanced means or in person at least every other month.

AGC shall be responsible for all expenses for Council meetings, including meeting rooms, conference calls, and food and beverages.

Council members or the organizations they represent shall bear travel expenses associated with their participation in Council meetings.

4. Document Development and Approval

4.1 Document Review Cycle

To ensure that all ConsensusDocs standard documents serve the best interests of the construction project and the construction industry, the Contract Content Advisory Council will review and, if necessary, update each document no less than every five years.

ConsensusDocs, however, recognizes that the construction industry is constantly evolving, shaped by customer demands, government requirements, the economy, etc. Thus, any Endorsing Organization may propose that an existing document be reviewed and revised sooner than the five-year schedule, by submitting a Document Proposal as described in Paragraph 4.2.

The Executive Director shall maintain a log of issues that have been raised that may lead to the possible revision of the documents, including issues raised by Endorsing Organizations, other stakeholders, users, commentary and analysis, case law, and developments in the industry. In addition, The Executive Director shall distribute appropriate log entries to working groups that are considering or that should consider the implications of such log entries.

The Executive Director may make necessary and appropriate non-substantive editorial changes.

4.2 Document Proposal

Any Endorsing Organization may recommend the development of a new document or the revision of an existing document by submitting a Document Proposal to the chair of the Contract Content Advisory Council and/or the Executive Director.

A Document Proposal should include:

· The type of document proposed (e.g., contract, addendum, form, etc.).

· A description of the parameters of the document.

· The industry need for the document.

· A list of the industry parties likely to be impacted by the document (e.g., intended audience).

4.3 Contract Content Advisory Council Review of Document Proposal

Within 14 days of receipt of a Document Proposal, the ConsensusDocs Executive Director shall distribute the Document Proposal to each Endorsing Organization. The Executive Director shall invite each Endorsing Organization to:

Indicate whether or not it believes there is an industry need for the proposed document.

· Alternatively, whether it has an objection to Document Proposal and the nature of those objections.

· Its level of interest in the Document Proposal.

· Whether it wants to appoint a representative(s) to the Working Group and the contact information for such representative(s).

· Identify other nonprofit associations or professional societies that may have an interest in the Proposed Document.

Each Endorsing Organization shall be given 21 days to respond to a Document Proposal.

Based on the input of the Endorsing Organizations, the Council chair may decide to:

· Establish a Working Group on the Document Proposal.

· Defer action on the Document Proposal until discussion can be held at a Council meeting.

· Table the Document Proposal.

4.4 Working Group Members

Working Group Members may be representatives of Endorsing Organizations and Stakeholder Liaisons.

Working Group members should:

· Have expertise and experience with the topic of the Document Proposal as well as construction contract documents.

· Be willing and able to provide the time to participate actively in the Working Group.

· Understand and concur with the mission of ConsensusDocs.

· Have a collaborative approach to developing best practice contract documents.

· Shall act, at all times, in good faith with the ConsensusDocs mission.

4.5 Stakeholders

ConsensusDocs is committed to continuing to ensure that it represents diverse interests in the construction industry. Thus, any nonprofit association or professional society, company, government agency or individual with a direct and material interest in a Proposed Document has a right to have their views actively considered during the drafting process.

The Working Group may invite any Stakeholder that is a nonprofit association or professional society to appoint a Liaison to the Working Group. A Stakeholder Liaison shall have a voice in the Working Group’s deliberations through good faith participation.

The Working Group may invite other individual expert Stakeholders to express their positions and the bases for such positions either in writing or during a meeting of the Working Group. In addition, ConsensusDocs shall post on its Web site an invitation to industry members to participate in each new Working Group.

4.6 Appointment of Working Group

Within 21 days of the final Endorsing Organization report, the Executive Director shall notify the representatives of the Endorsing Organizations that they have been appointed to the Working Group and schedule an organizational conference call for the Working Group.

4.7 Working Group Meetings

AGC shall be responsible for all expenses for working group meetings, including meeting rooms, conference calls, and food and beverages.

Working group members or the organizations that they represent shall bear the travel expenses associated with their participation in ConsensusDocs meetings.

4.8 Organizational Conference Call

Shortly after its appointment, the Working Group shall have an organizational conference call. Among the tasks that should be addressed and accomplished during the organizational conference call are:

· Agreement on the parameters of the Proposed Document.

· Agreement on working forums (e.g., conference calls, conference calls in a Web environment, in-person meetings, etc.).

· Adopt rules for its own governance that are not inconsistent with these Procedures or with other rules adopted by the Council.

· Establishment of a schedule with milestones.

· Agreement on a chair(s) and, if appropriate, a vice chair. The chair and vice chair shall not be from the same organization.

· Agreement on a Working Group recording secretary.

· Identification of other Stakeholders that should be invited to participate in or submit comments to the Working Group.

4.9 Working Group Chair

The chair(s) and vice-chair of a Working Group may be representatives of any Endorsing Organization. The Working Group chair shall serve as a facilitator (rather than an advocate) for the discussion and schedule of the Working Group. The Working Group Chair shall assure that all voices are heard, that opinions in the minority are respected and actively considered, and that the final product furthers the mission of ConsensusDocs.

4.10 Working Group Recording Secretary

The recording secretary of a Working Group shall be responsible for keeping and distributing minutes of the meetings of the Working Group. The recording secretary shall distribute minutes of the meeting within 10 days of a meeting.

4.11 Working Group Work Product

All work products of a Working Group shall be provided to the Executive Director.

4.12 Confidentiality Agreement and Waiver of Copyright

Each Working Group member and other participants in Working Group deliberations shall be required to sign a Confidentiality Agreement and Waiver of Copyright as a condition of participation. The Executive Director will be responsible for maintaining copies of such agreements.

4.13 Working Group Report to the Contract Content Advisory Council

The Working Group’s final work product shall be a Report to the Contract Content Advisory Council. That Report shall include:

· A complete draft of the Proposed Document with instructions for use when appropriate.

· A one-page fact sheet summarizing the industry need of the Proposed Document and a list of the industry parties that will be impacted by the Proposed Document.

· A recommendation to the Contract Content Advisory Council.

4.14 Action by the Contract Content Advisory Council on Proposed Document

The chair of the Contract Content Advisory Council shall distribute the Working Group’s Final Report to the Council within 14 days of its completion. The chair shall conduct a written poll of the Contract Content Advisory Council by inviting each member of the Council to, within 14 days:

· Indicate that he/she recommends approval of the Proposed Document, as submitted, to the Endorsing Organizations; OR

· Indicate he/she has concerns with the Proposed Document and to describe what those concerns are.

The chair of the Contract Content Advisory Council shall compile the results of the written poll, including any concerns expressed. Based on the results of the written poll, the chair of the Contract Content Advisory Council shall determine the next steps.

If three-quarters of the Council’s members, representing all elements of the industry, respond that they recommend approval of the Proposed Document, to the Endorsing Organizations, the chair may submit the Proposed Document to the Endorsing Organizations for endorsement.

If fewer than three-quarters of the Council’s members OR all of the associations representing one or more interests of the industry raise concerns about the Proposed Document, the chair may:

· If the concerns appear to be minimal, schedule a conference call of the Contract Content Advisory Council with the purpose of resolving such concerns. The Working Group chair shall be invited to make a presentation and to respond to questions during such conference call.

· If the concerns appear to be more than minimal, notify the Contract Content Advisory Council that the Proposed Document will be put on the agenda for its next in person meeting. The Working Group chair shall be invited to make a presentation and to respond to questions during such meeting.

· Refer the Proposed Document back to the Working Group with the request that it attempt to address the concerns raised.

4.15 Endorsement by ConsensusDocs Organizations

Once the Contract Content Advisory Council has reviewed and approved the Proposed Document, the Executive Director shall distribute the Proposed Document to the Endorsing Organizations. The Executive Directors shall include in the package provided to Endorsing Organizations:

· A complete draft of the Proposed Document with instructions for use when appropriate.

· A one-page fact sheet summarizing the industry need of the Proposed Document and a list of the industry parties that will be impacted by the Proposed Document.

· The recommendation of the Contract Content Advisory Council.

· The name and contact information of the chair of the Working Group.

· A ballot.

· If appropriate and necessary, the Executive Director shall schedule a teleconference during which the Working Group Chair shall review the document and respond to questions from representatives of Endorsing Organizations.

The Executive Director shall give each Endorsing Organization 90 days to review the Proposed Document and return the signed ballot. The Executive Director shall maintain a record of ballot voting.

5. Documents Education

5.1 Education – General

ConsensusDOCS is committed to ensuring that all members of the construction team understand the appropriate sharing of risk and thus the value of standard documents that serve the best interests of the construction project and the construction industry. The Business and Marketing Advisory Council is responsible for oversight of education on ConsensusDocs.

5.2 Education by Endorsing Organizations

The Endorsing Organizations include education and professional development among their goals and objectives and include education on ConsensusDocs as a core part of their education programming.

ConsensusDocs has established a Friends of ConsensusDocs Web site to facilitate the sharing of educational and other materials among the Endorsing Organizations. Endorsing Organizations should contact the ConsensusDocs Marketing Director of Contracts for information on now to access and use the Friends of ConsensusDocs Web site.

Endorsing organizations may use samples of ConsensusDocs standard documents in their educational programs without prior approval.

5.3 Education by Non-Endorsing Organizations or Individuals

To further education on its standard documents, ConsensusDocs is committed to working with other nonprofit associations and professional societies, companies, government agencies and individuals. Such entities or individuals should contact the Executive Director for assistance.

6. Promotion of ConsensusDocs

6.1 Promotion – General

ConsensusDocs is committed to ensuring that it continues to promote standard form construction documents that advance the construction process. The Business and Marketing Advisory Council is responsible for the oversight of marketing and media relations.

6.1 Marketing

The Endorsing Organizations have each assumed responsibility for specific marketing activities, including:

· Putting a link to the ConsensusDocs Web site in a prominent location on their Web sites.

· Advertising ConsensusDocs in their own periodicals.

· Putting information on how to purchase ConsensusDocs materials in their publication catalogs.

· E-mailing information to their members about ConsensusDocs materials.

· Each Endorsing Organizations should reference its own Memorandum of Understanding for its specific responsibilities.

To assist Endorsing Organizations with their marketing responsibilities, the ConsensusDocs Director of Marketing shall develop and provide marketing templates, materials, advertisements, and promotional information in a timely manner.

6.2 Public and Media Relations

The Executive Director shall be the principal spokesperson for ConsensusDocs. The Council chairs also may speak for ConsensusDocs in consultation with the Executive Director.

Each Endorsing Association is encouraged to adapt ConsensusDocs media material for its own publics. However, each also should assure that its media material makes clear that it is speaking for itself, not ConsensusDocs.

7. Technology

7.1 Technology – General

ConsensusDocs is committed to ensuring that all stakeholders can easily access the standard documents and related materials. Thus, ConsensusDocs shall ensure that its technology is user-friendly, cost-effective and efficient. Both the Contract Content Advisory Council and the Business and Marketing Advisory Council are responsible for recommending actions pertaining to technology.

7.2 Technology Management

The Executive Director shall be responsible for maintaining and improving the technology used to deliver ConsensusDocs to document users, the ConsensusDocs Web site, and the “Friends of ConsensusDocs” Web site.

8. Miscellaneous

8.1 Approval and Revisions

These procedures were adopted through a consensus-decision making process of both the Contract Content Advisory Council and the Business and Marketing Advisory Council. These provisions shall be reviewed and revised no less than every five years. Endorsing organizations may propose revisions sooner than a five-year schedule, by submitting a proposed amendment. Revisions to the ConsensusDocs Procedures shall be considered by both Advisory Councils in a consensus-decision making process.

The Executive Director may make necessary and appropriate non-substantive editorial changes.

8.2 Procedures for Correcting Errors

ConsensusDocs recognizes that, because of the volume of its publications, on a rare occasion, a user or an Endorsing Organization may identify a minor error (e.g., misspelling, improper punctuation, etc.) in a document after the original text is published. In such case, the Executive Director shall develop and publish an errata sheet, which shall be made available on the ConsensusDocs Web site at www.consensusdocs.org. In addition, the Executive Director shall provide the errata sheet to past purchasers and new purchasers of the document.

With even less frequency, a user or Endorsing Organization may identify a major error (e.g., one that renders the document ambiguous or confusing and potentially increases liability to a signatory) in a document after the original text is published. In such case, the Executive Director shall identify the purported error and the proposed correction to the Endorsing Organizations of the document in question; such Endorsing Organizations shall be given 21 days to veto the correction. If the Endorsing Organizations accept the correction, the Executive Director immediately shall post a document amendment containing the agreed correction on the ConsensusDocs Web site at www.consensusdocs.org and provide a copy of the document amendment to past purchasers and new purchasers of the document.

The Executive Director shall make all corrections to the documents based on errata sheets and document amendments each time that new documents are added or existing documents are revised on the ConsensusDocs Web site. All revised documents shall include a revision date to differentiate them from prior versions.