AIA Contract Documents® 2007 Update: The AIA Owner/Architect Agreements

Summary: Projects come in many sizes: from simple additions to existing buildings to large, complex projects involving multiple bid packages and fast track schedules and everything in between. So why has the AIA traditionally published only a limited number of standard form Owner/Architect agreements to serve the full range of project complexity? In the November 5 release of updated 2007 documents, the AIA has acknowledged this conundrum and is providing options that allow architects and owners to select among several Owner/Architect agreements, each individually crafted to respond to a project’s complexity. Following are the major updates related to the 2007 Owner/Architect Agreements.

B101-2007—the AIA’s Flagship Owner/Architect Agreement
Basic and additional services: B101–2007 returns to the concept of “basic” and “additional” services. It defines the architect’s services during five phases: schematic design, design development, construction documents, bidding/negotiation, and construction. Additional services, which may be simply thought of as any service that is not a basic service, may be included in the agreement when it is executed, or added as the project proceeds.

Standard of care: B101–2007 includes a statement of the standard of care pursuant to which the architect shall perform its services. Generally speaking, architects, like all professionals, must perform their duties in a given circumstance consistent with the degree of care and competence expected of a reasonably skilled member of the profession. This standard of care applies in any professional activity an architect undertakes, regardless of whether the standard of care is stated in the contract for services. The AIA, however, saw fit to include a clear and explicit statement of the generally applicable standard of care in its 2007 revisions.

Insurance requirements: Another new addition in the Owner/Architect agreements is one that requires the parties to specify the types and limits of insurance the architect is required to maintain. Where those requirements exceed the types or levels of insurance the architect normally maintains, the owner is required to reimburse the architect for the costs of obtaining such excess insurance.

Sustainable design: In furtherance of its public policy on sustainable design, the AIA has undertaken a number of initiatives to promote sustainability and shape the landscape of environmentally responsible design and construction. Accordingly, B101–2007 requires the architect, during the schematic design phase and as part of its basic services, to discuss with the owner the feasibility of incorporating environmentally responsible design approaches into the project and consider them in completing the design. However, if the owner requests extensive design alternatives such as unique system designs, in-depth materials research, energy modeling, or LEED® certification, the architect will provide those services as an additional service for additional compensation.

Intellectual property rights (instruments of service): The AIA recognized that provisions in AIA agreements written to protect the architect’s ownership rights were confusing and rigid regarding the requirement that, following any termination of the agreement, the architect had to be adjudged in default before the owner could use the architect’s instruments of service to complete the project. Therefore, the AIA has overhauled these provisions for clarity and has added provisions for the owner to have more access to the architect’s instruments of service to construct, use, maintain, alter, and add to the project, provided the owner has paid the architect all amounts due.

B103-2007—Owner/Architect Agreement for Large Projects
B103 is a one-part document developed to replace B141-1997, Parts 1 and 2, and B151-1997 specifically with respect to large or complex projects. Representatives of the Large Firm Roundtable provided comment and assistance in its development. Like B101-2007, it divides the architect’s services into basic and additional services and may be used with a variety of compensation methods, including percentage of construction cost and stipulated sum.

Some of the major differences between B103 and B101 include:

• B103 assumes that the Owner will retain third parties to provide cost estimates and project schedules, and the Owner may implement fast-track, phased, or accelerated scheduling. Accordingly, the Architect’s Basic Services are modified as necessary based on those assumptions.
• The Owner’s Responsibilities include an acknowledgement of the risks associated with accelerated, fast-track, or phased construction
• All Initial Information is provided in Article 1 of B103, and there is no optional Exhibit A.
• The Owner must provide requirements for accelerated or fast-track scheduling, multiple bid packages, or phased construction. Fill points are provided for the Owner to list its cost consultant, scheduling consultant, geotechnical engineer, civil engineer, and other consultants.
• The Architect provides an indemnity to the Owner for third-party claims limited to the available proceeds of its insurance coverage.

B104-2007—Owner/Architect Agreement for a Project of Limited Scope
B104 is designed to address medium-sized projects. B104, an abbreviated version of B101, has been simplified and streamlined.

Some of the differences between B104 and B101 include:

• The initial Information in B104 is contained in one fill-point, in which the parties provide information about the project’s site and program, contractors and consultants, the Owner’s budget, and other relevant information
• B104 contains three Phases of Basic Services rather than five, and its description of additional services is condensed
• B104 does not contain the requirement of B101 that the Architect consider environmentally responsible design alternatives in developing the design. Instead, B104 requires only that the Architect discuss with the Owner the feasibility of incorporating environmentally responsible design approaches
• B104 does not contain any specific insurance requirements
• B104 should be used in conjunction with A107-2007, which, like B104, is an abbreviated owner-contractor agreement designed for use on midsize projects.

All of these differences between B101 and B104 were made with the goal of providing a concise and more user-friendly document for the sizable group of midsize project practitioners. However, certain terms and conditions from B101 were kept in B104, including the:

• Duty to provide cost estimates and design the Project to meet the Owner’s budget
• Copyright and licensing text
• Checkbox for arbitration and litigation
• Same standard of care is cited
• Identical sections on arbitration and consolidation or joinder
• Identical article on compensation.

B105-2007—Owner/Architect Agreement for a Residential or Small Commercial Project
B105, the Owner/Architect Agreement for a Residential or Small Commercial Project, is a substantial revision of its predecessor document, B155-1993. It incorporates alterations proposed by architects, contractors, owners, and consultants—and especially from small practice practitioners—to achieve a streamlined and simplified document to be used for small projects. The title was changed to convey this concept.

B105 is a document that will be understandable and accessible to the homeowner client. As such:

• Its format has been simplified to be less formal and more user-friendly
• Paragraph numbering has been removed and the document is now only two pages (plus the cover) in length
• The standard terms and conditions can easily be edited and attached to a letter proposal or agreement to provide a “friendly face”
• The agreement divides the architect’s basic services into two phases: design and construction, so the Architect:
  --Reviews the Owner’s scope of work, budget, and schedule to reach an understanding with the Owner of the project requirements
  --Prepares the construction documents after the Owner approves the design
  --Coordinates its services with any Owner’s consultants
  --Assists the Owner with filing documents with governmental authorities, obtaining proposals and awarding construction contracts.

The Architect’s Construction Phase responsibilities are incorporated by reference to A105-2007, the Owner/Contractor Agreement for a Residential or Small Commercial Project, and generally include interpreting the contract documents, reviewing the Contractor’s submittals, visiting the site, reviewing and certifying payments, and rejecting nonconforming Work.

• The Architect retains all rights to the instruments of service, allowing the Owner to use them solely for the project, and the Owner’s right to use them ceases when the project is complete.
• It contains a slightly abbreviated standard of care from the other Owner/Architect agreements, in that “the Architect shall provide architectural services for the Project as described in this Agreement in a manner consistent with locally accepted standards for professional skill and care.”
• The Owner’s Responsibilities include:
  —Employing a Contractor to provide price information
  —Providing information about scheduling
  —Furnishing other information required by the Architect
  —Furnishing consulting services required for the project but not provided by the Architect, such as surveying, geotechnical engineering, and environmental services.
• At the request of the Owner, the Architect shall provide services not included elsewhere in the agreement for additional compensation. Examples of such other services include:
  —Providing or coordinating services of additional consultants
  —Making revisions due to changes in scope, quality, or budget
  —Reviewing and evaluating substitutions and changes in the Work
  —Providing services not completed within an agreed-upon number of months of the date of the agreement through no fault of the Architect.

B105 relies on the law of the place where the project is located and does not contain a dispute resolution provision.

All of this makes B105 a short and easily understood agreement that the homeowner or other small project Owner will feel comfortable using.

Conclusion
The revisions to the Owner/Architect Agreements and all of the A201 Family are not limited to those addressed in this article, although the revisions presented here represent some of the more significant and most hotly debated changes. Regardless of the extent of the change, however, they all are products of the AIA’s extensive efforts to seek, review, analyze, and discuss industry feedback from all parties whose interests may be significantly affected by individual agreements. As a result of this process, the AIA A201–2007 Family continues the AIA’s tradition of producing agreements that fairly balance divergent interests and accurately reflect the modern construction industry.