By Annica Mae Mattus, Esq., and Daniel M. Eggleston, Esq.
Lee/Shoemaker PLLC

When an athlete is called for a foul, quite often they confront the referee and dispute the call. While we generally view referees as neutral, would this perception change if the referee was being paid by one of the teams? Would the team paying for the referee expect favorable calls in the game? If these considerations would cause you to call into question the integrity of a game and whether a team was right to question a referee’s decision, consider these hypotheticals the next time a claim is presented to the architect in the role of the “Initial Decision Maker” in disputes between the owner and contractor.

The IDM is a Referee Paid by the Owner
Architects who have used AIA contract documents before may be familiar with the role of the Initial Decision Maker (“IDM”) in disputes between the owner and contractor. The AIA A201 generally defines the IDM as the person who renders initial decisions on claims in accordance with a procedure outlined in section 15.2 of the A201.  Unless the owner and contractor designate another individual to serve as the IDM, the architect is the default IDM specified in the A201.

The IDM is tasked with analyzing claims and disputes submitted by the owner or contractor and making an initial determination as to their validity, the idea being that some of the more straightforward claims may be weeded out and resolved before the parties undertake more costly dispute resolution procedures like mediation, and arbitration or litigation. In general, the A201 requires that claims be submitted first to the IDM for initial decision as a condition precedent to mediation and binding dispute resolution (i.e., litigation or arbitration).

On many projects, no claims get submitted to the architect for action as the IDM and the title of IDM carries no responsibilities in addition to those construction phase services typically performed by an architect.  However, when claims are submitted, the IDM is tasked with a variety of process- and substance-related duties that may call into question the architect’s objectivity on the issues presented. 

Be Aware of the IDM’s Response Time Requirements
Once the IDM receives a claim, the IDM is obligated to review it and take action within 10 days after receiving the claim under the unmodified language in the AIA documents. The initial action, however, may be something other than issuing a determination on the claim. The IDM may also request additional information from one or both the owner and contractor, set a schedule for determining the outcome of the claim, suggest a compromise, or advise that the architect is unable to render a determination. As submission of a claim to the IDM is typically a condition of further escalation of the dispute, architects filling this IDM role should recognize that they do not have much time to evaluate and respond to a claim once received.

The Architect as IDM Ethical Quandary
Where the architect is already reviewing RFIs, submittals, PCOs, performing site visits and certifying payment applications, reviewing a claim may not require much additional effort to act as the IDM. If a contractor claim against an owner implicates the design, however, there may be a suggestion that the architect is not neutral or impartial.

The architect is paid solely by the owner, including when serving as IDM. From the contactor’s perspective, this may suggest that the architect is conflicted in rendering a fair decision. It is important to remember, however, that the owner and contractor presumably considered this potential risk when they decided to appoint the architect as the IDM.

To minimize the risk of being accused of bias, the prudent architect should give thought to how they respond when evaluating a claim as an IDM and identifying the objective factual basis for any decision rendered. If the architect focuses its decision on objectively verifiable facts backed by supporting documentation when available, the architect’s knowledge of the project and articulation of the key facts may help the owner and contractor resolve their dispute.

Planning for the Future
If the architect’s determination as an IDM does not resolve the dispute between the owner and contractor, a detailed decision by the architect may help the architect down the road should the claim escalate. Whether called upon to testify at a deposition, trial, or arbitration hearing, the architect’s issuance of a fact-based decision in their role as an IDM can serve to jog the architect’s memory on the thought process/analysis undertaken at the time of the architect’s decision, minimizing the architect’s need to recall all details several years after issuing the decision.

Conclusion
As most architects do not serve as an IDM on a regular basis, the prudent architect should familiarize themselves with their contractual obligations anew anytime a claim is presented to them in their role as IDM and adopt a thoughtful, objective approach to render its decision – all of which may help to resolve, rather than escalate, the dispute.

Annica Mae Mattus and Daniel M. Eggleston are lawyers at Lee/Shoemaker PLLC, a law firm devoted to the representation of design professionals, in DC, Maryland, and Virginia. The content of this article was prepared to educate related to potential risks, but is not intended to be a substitute for professional legal advice.