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Design Professional's Practice Bulletin
Volume 11, Number 1 - December 2007
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This Bulletin addresses recent developments affecting Design Professionals as well as business concerns as important as the specific professional and technical issues they face.
Editors: Neil P. Clain and Richard J. Davies
The 2007 AIA Conventional Family Of Documents
In October of this year, the AIA Documents Committee released its decennial revisions to the Conventional Family of contract documents. This family includes certain of the standard forms of agreement in the Owner-Contractor series, the Owner-Architect series, the Contractor-Subcontractor series and the Architect-Consultant series, as well as the standard form of general conditions (A201) to the Owner-Contractor agreements in this family.
The documents affected by these changes most important to the architectural community are those in the Owner-Architect series, particularly standard forms B141 and B151, and the standard general conditions (A201).
Several of the changes are important and you should familiarize yourself with them. In this and succeeding articles, we will review the more significant changes affecting documents B141 and B151, A201 and some of the other documents in this family.
B101
In sum, the most frequently used AIA Owner-Architect agreements, standard forms B141 and B151, are being retired and replaced by a new form, B101, which will become the Owner-Architect agreement for use on either medium or large projects (which constitute approximately 70% of all projects for which AIA documents are used) and which is coordinated for use with the revised form of A201. A new form, B103, is for large/complex projects, and new forms B104 and B105 are for medium and small projects, respectively.
The most obvious change reflected in B101 is its one-part format; the two-part format of document B141 will no longer be the core format of agreements between owners and architects, although the concept fostered by the two-part format is being preserved through two other new forms which we will discuss later (B102 - which replaces part 1 of B141, and B201 - which replaces part 2).
In developing B101, the documents committee adopted the format of B151, but the text of form B141, and you will see the similarities between the language of B101 and B141. However, as noted, there are significant changes represented in this new document.
While forms B141 and B151 are being retired, you will still be able to access their electronic versions for the next 18 months if you are using the AIA's software. However, given the significance of certain of the benefits provided in the new document, you should familiarize yourself with it and begin to use it, with certain modifications appropriate to the circumstances of particular projects.
Standard of Care
Unlike both B141 and B151, B101 contains a statement of the standard of care to be applied by the architect in providing those basic and agreed-upon additional services identified in the agreement. The standard of care expressed in B101 sets forth the standard of care that has been defined in the common-law through court decisions and thus does not change the standard of care you should apply to your services. The motivation for this express statement was the fact that owners, and sometimes architects, were including statements of the standard of care in modified versions of the AIA agreements, and in custom agreements, that intentionally, or unintentionally, expressed a higher standard of care than would be required by the courts. Thus, the new document states that the architect will provide 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.
See Section 2.2.
The standard of care expressed in B101 sets forth the standard of care that has been defined in the common-law through court decisions and thus does not change the standard of care you should apply to your services.
Insurance Requirement
B101 also differs from B141 and B151 by including a requirement that the architect carry insurance, including professional liability coverage, workers compensation coverage, automobile liability insurance, and general liability insurance. See Section 2.5. Increasingly, owners are adding to the standard AIA form documents, or including within customized agreements, provisions specifically requiring certain coverages from the architect, in certain limits. Thus, by including this new provision, the documents committee has brought the standard form agreement into compliance with current practice.
Basic and Additional Services - Generally
The first significant change worth noting is that the AIA has abandoned B141's "Change in Services" concept for a return to the prior concept of "Basic" versus "Additional" services expressed in the 1987 version of B141 and the 1997 version of B151. See Section 4.1. However, like B141, B101 continues the use of a table listing various optional additional services which the parties can add to the agreement for additional compensation.
And, like B141 and B151, the new document continues to treat as contingent additional services: revisions to the documents (due to adjustments in the owner's program, subsequent revisions to Codes, and untimely owner decisions); the preparation of change orders and construction change directives; services related to replacement of work damaged from fire or other causes; and those other types of additional services traditionally known as "contingent additional services." See Sections 4.3.1 and 4.3.2. It also continues the use of a "fill in the blanks" section setting forth limits on certain construction phase basic services provided for the basic services fee (e.g., shop drawing reviews, site visits, inspections for determining substantial completion, etc.) and identifying as additional services those tasks exceeding the specified limits.
Basic Services: Schematic Phase - Revisions
Revisions to certain of the basic services provisions have been made affecting several of the different phases of service provided by an architect, including the schematic design phase. B101 now contains an express requirement that, as part of its basic services, the architect shall discuss with the owner alternative approaches to design and construction "including the feasibility of incorporating environmentally responsible design approaches." See Section 3.2.3. This addition reflects the AIA's commitment to promoting design and construction methods which seek to preserve rather than deplete natural resources and which avoid, or at least minimize, negative impacts to the environment.
The agreement goes on to express a command that the architect:
consider environmentally responsible design alternatives, such as material choices and building orientation together with other considerations based on program and aesthetics, in developing a design that is consistent with the Owner's program, schedule and budget for the Cost of Work.
See Section 3.2.5.1
This provision's emphasis upon consistency with the owner's program, schedule and budget implies that the architect is not obligated to include environmentally responsible design alternatives in conflict with the owner's program, schedule and budget. That is, it appears that the architect is not compelled to give the owner something he does not want. Rather, the architect must at least raise the subject with the owner and in so doing promote environmentally responsible choices.
Rather, the architect must at least raise the subject with the owner and in so doing promote environmentally responsible choices.
Basic Services: Construction Documents Phase - Revisions
This new Owner-Architect agreement expressly identifies services typically provided by architects but not expressly identified in forms B141 or B151. For example, B101 specifically expresses the architect's obligation to:
...contact the governmental authorities required to approve the Construction Documents and the entities providing utility services to the project.
See Section 3.1.5
B101 further makes express the previously tacit understanding that the architect's construction documents do not contain all the information required to construct a project. Rather, you also need the information provided by the contractor through shop drawings, product data, samples and similar submittals:
The Owner and Architect acknowledge that in order to construct the Work the Contractor will provide additional information, including shop drawings, product data, samples and other similar submittals, which the Architect shall review in accordance with Section 3.6.4.
See Section 3.4.1
Basic Services: Bidding and Negotiation Phases - Revisions
Unlike B141 and B151 which require that the architect provide certain of these services upon request, B101 now makes mandatory certain of these services during these alternative phases.
Now, in the case of competitive bidding, the architect shall procure the reproduction of bidding documents; distribute the bidding documents; organize and conduct a pre-bid conference; and organize and conduct the opening of bids. See Section 3.5.2.2.
In the case of Negotiated Proposals, the architect shall procure the reproduction of proposal documents for distribution; organize and participate in selection interviews; and participate in negotiations with prospective contractors. See Section 3.5.3.2.
Basic Services: Construction Administration Phase - Revisions
One of the more notable changes to the Owner-Architect agreement relating to basic services during the construction administration phase is the addition of a provision in B101, with a corresponding change in A201, that specifically requires the contractor to produce a submittal schedule. Most important is the fact that, under the new version of A201, if the contractor fails to submit a schedule, he "shall not be entitled to any increase in Contract Sum or extension of Contract Time based on the time required for review of submittals." See Section 3.10.2 of A201, 2007 edition. We have regularly counseled clients to insert in the contract documents the requirement of a submittal schedule so that the architect can determine, among other things, if the contractor appreciates the needs of the project and has a realistic schedule and sequence for events relating to submittals and approval of project components. This change to A201 adds an enforcement component to this requirement.
The other significant change to the architect's basic services during this phase is the change in that language identifying the architect as the Initial Decision Maker in claims and disputes arising between the owner and contractor. B101 and the revised versions of A201 have created an option permitting the owner and contractor to identify a third party, other than the architect, to render such decisions. If the owner and contractor do not identify a different third party, then by default the architect continues to serve in that role. See Section 3.6.2.5 of B101, and Sections 1.1.8 and 15.2 of A201, 2007 edition.
The procedure to be applied by the Initial Decision Maker, whether he is the architect or another third party, is expressly set forth in a new Article 15 entitled "Claims And Disputes" in the new version of A201.
[We will continue this Article in the next issue of our news bulletin, addressing revisions to the provisions governing the Owner's Responsibilities, Instruments of Services, and the Resolution of Claims and Disputes. If you have any questions in the interim, please let us know.]
