2007 Revisions to the AIA Contract Documents

2. 2007 Revisions to the AIA Contract Documents By W. James Johnson September 18, 2008

3. 1997 AIA A201 FAMILY OF DOCUMENTS • Based on Design-Bid-Build Sequence • Provides core family of contract documents with correlated, cohesive provisions: • B141/151Owner/Architect Agreements • A101 et seq. Owner/Contractor Agreements • A404 Contractor/Subcontractor Agreements • C141 Architect/Consultant Agreements • A201 Unified General Conditions incorporated into all above contracts

4. Benefits of Document Families • Coordinated Duties • Definitions apply throughout all contracts • Flow down provisions avoid duplication and inconsistencies • Parallel language minimizes ambiguities

5. 1997 A205 Small Project Documents • B155 Owner/Architect agreement • A201 Owner/Contractor Agreement • A205 General Conditions for Construction

6. 2007 Revised Framework • B141 and B151 are retired (accessible for another 18 months after November 5, 2007) • Replaced by New B101 OR • B102 • Take off on B141 Part 1 without a defined set of services • Contains terms and conditions • Use add on attachments for various discrete services (e.g. site evaluations, Facility support services, etc.

7. New AIA B101 • AIA eliminates “two part agreement” format of B141-1997 • AIA found majority of practitioners were using B151 one part agreement • Merges two parts of B141 into one document which returns to “full service” basic services + ability to select enumerated Additional Services • Schematic • Design Development • Construction Documents • Bidding • Construction Administration

8. Four “Versions” of the B101 Contract for Projects of Differing Size • B101= Medium to Large Project • Architect to provide cost estimating services • No Fast Track/multiple bid packages • B103=Large to Extra-Large, Complex • Owner retains third party cost estimators and project schedulers • Fast Track, phased or accelerated delivery • B104=Project of Limited Scope • Basic Services in 3 phases vs. 5 • Abbreviated text • B105=Residential or Small Commercial • Replaces B155

9. Substantive Changes to 2007 Documents • Statement of Standard of Care • Article 2.2 provides: • Architect shall perform its services consistent with the professional skill and care ordinarily provided by Architects practicing in the same or similar locality under the same or similar circumstances. • Goal was to address tendency of Owners to insert standard of care provisions into the Agreement which displaced or expanded common law standard of care

10. Substantive Changes to 2007 Documents (cont.) • Art. 2.5: Architect’s insurance requirements • Specifies amounts and types of insurance required • General Liability • Automobile Liability • Workers Compensation • Professional Liability • AIA recognizes most practitioners carry PL insurance and that owners are now requiring insurance in contract

11. Substantive Changes to 2007 Documents (cont.) • Art 3.1.5: Architect shall at appropriate times contact governmental authorities with jurisdiction over the project and entities providing utility services to the Project. The Architect shall respond to applicable design requirements • If Architect misses a code requirement, is he “strictly liable”?

12. Substantive Changes to 2007 Documents (cont.) • Green Building • Art. 3.2.3: Architect required to discuss with Owner alternative approaches to environmentally responsible design as part of basic, schematic services. • Building orientation • Material choices • Extensive services, such as Leed Certification, would be additional services • Owner selects appropriate level of responsible design based on discussions • Architect as “advocate” of environmental design

13. Substantive Changes to 2007 Documents (cont.) • Options to elect Independent Decision Maker • Understand Dynamic between Consensus Documents and AIA • AGC, COAA, ASC, ASA (2 organizations) • Consensus groups wanted all member groups to give up right to sell their own documents • AIA and EJCDC have declined

14. Substantive Changes to 2007 Documents (cont.) • ConsensusDoc advocated away from Architect as initial decision maker • Contractor groups concerned about conflict of interest • Owner concerned that Architect making decisions with “their money” • See www.agc.org for a “Guidebook” on these documents

15. Substantive Changes to 2007 Documents (cont.) • A201 2007 allows for optional third party Initial Decision Maker • Owner and Contractor identify IDM in Owner/Contractor Agreement • If they fail to do so, Architect’s role per 1997 AIA documents is preserved

16. Substantive Changes to 2007 Documents (cont.) • Mandatory arbitration no longer required • Reflects reality that arbitration has pros and cons: • Pro: sometimes quicker, easier • Con: sometimes more discovery warranted, no appeal • Mediation still required as condition precedent • Parties elect arbitration or litigation • Failure to elect defaults to litigation • More lenient rules on consolidation and joinder of necessary third parties • Cant be prohibited by another agreement’ • Same transaction/occurrence • Must have similar rules for selection of arbitrators

17. Substantive Changes to 2007 Documents (cont.) • Statute of Limitations no longer run from Substantial Completion or Final Certificate for Payment (per 1997) • Must be initiated in accordance with state law and not later than 10 years after substantial completion • Disputes between Owner/Contractor based on phased commencement period, tied to warranty period

18. Coordinating 2007 Documents • A201 2007 Family includes: • A101 Stipulated Sum; A102 Cost Plus Fee with Max; A103 Cost Plus w/o Max; • B101,B103 • A201 General Conditions • A401 Subcontractor Agreement • C401 Sub Consultant Agreement

19. Coordinating 2007 Documents (cont.) • Standard Agreements for Limited Scope • A107 Owner/Contractor stand alone agreement with internal general conditions • Uses Exhibit A attachment for Cost Plus • B104 Owner/Architect incorporates A107 by reference • Three phases: Design, Construction Documents, Construction

20. Coordinating 2007 Documents (Cont.) • Residential or Small Commercial Project Series • A105 Owner/Contractor Agreement • Combines former A105 and A205 • For modest size project and duration with stipulated sum pricing • B105 Owner/Architect Agreement • Abbreviated, 2 pages, incorporates A105 by reference

21. Digital Practice Family • C106 Digital Data Licensing Agreement • Serves as a licensing agreement between 2 parties who otherwise have none • Allows one party to grant a limited non-exclusive license, governing procedures, place restrictions on license granted • Stand alone document

22. Digital Practice Family (Cont.) • E201 Digital Protocol Exhibit • Intended to be used as attachment between parties who already have a licensing Agreement • Intended to govern procedures for exchange of digital information

23. Additional Resources • http:// • www.aia.org Commentaries • Document Comparisons • Purchase forms • http://www.consensusdocs.org/

24. Ownership of Documents • 1997 AIA Documents tightly control Architect’s Ownership • License to Owner to use instruments for the project • Upon termination, license terminates unless and until Architect is adjudged to be in default • Can’t use until lawsuit is over • Owners objected

25. 2007 Copyright and Licenses • Upon execution, Architect grants a nonexclusive license to the Owner to use instruments of service for constructing project • If Architect rightfully terminates for cause, the license shall terminate • If Owner uses instruments without retaining Architect, Owner holds Architect harmless

26. Owner Termination for Convenience • If Owner terminates for convenience or Architect terminates under 9.3 as a result of Owner’s suspension, Architect may establish a licensing fee to release the license to the Owner for continued use

27. The Three Families In Review • A201 • A105 Contract plus conditions • Shortest Agreements, least conditions • No ADR procedures • A107 Contract plus conditions • Uses B104 • More detailed general conditions