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Understanding AIA Document A201™-2017
GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
Berkley Design Professional
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© 2019 Berkley Design Professional 4
This presentation is protected by US and International Copyright laws.
Reproduction, distribution, display and use of the presentation without
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Information provided by Berkley Design Professional and Schiff Hardin is for
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regarding the use and enforceability of the information contained herein
will vary depending upon jurisdiction, the user of the information should
consult with an attorney experienced in the laws and regulations of the
appropriate jurisdiction for the full legal implications of the information.
Practice management recommendations should be carefully reviewed and
adapted for the particular project requirements, firm standards and
protocols established by the design professional.
Legal Notices
Presented by
5
Andrew D. Mendelson, FAIA
SVP, Chief Risk Management Officer
Berkley Design Professional
• Licensed architect with 36+ years in
practice
• PM, Market Leader, Contract Officer, CFO,
Director of Practice Management
• Member of the AIA Documents Committee
2003-2017 and LFRT Legal Committee
2000-2010, ACEC Risk Management
Committee
• Risk Management Education from the
practitioner’s perspective
Presented by
Jeremy S. Baker
Partner, Construction Law Group
Schiff Hardin LLP
• Represents design professionals, owners,
developers, and contractors in all aspects
of design and construction
• Jeremy’s practice involves project
structuring across many project delivery
methods, plus contract review and
negotiation
• Has prosecuted and defended lawsuits in
well over 30 state and federal court venues
– but he prefers to resolve disputes using
cost-efficient alternative dispute resolution 6
Webinar Agenda
7
A201™ Document Family
Architect’s Duties and Responsibilities
Contractor’s Duties and Responsibilities
• Most widely used contract form
• Likely very important until 2027
• 309 mentions of “Architect”
• CA is a major source of fees
• Some groups seek to diminish
the Architect’s role in CA
8
A201™-2017: Why Architects Should Care
• Standard form
documents since 1888
(129 years)
• Evolved to reflect practices
in the construction industry
• Substantial volume of
interpretive case law
(AIA Legal Citator)
• Major agreements revised on
10-year cycle
• Now, nearly 200 agreements
and forms
History
• The Industry Standard
• Fair and balanced
• Balancing competing
interests
• Put risk where it is best
managed
Objectives
Incorporate
Legal
Decisions
Seek
Industry
Comments
Investigate
Impact
Draft and
Revise
Documents
Solicit and
Review
Feedback
Finalize
and
Publish
Drafting Process
01 02 03 05 0604
11
A201™ Document Family
Section 1
A201 “Family” of Documents
Consultant(s) Subcontractor(s)
A310
A312
A401C401
Owner ContractorArchitect
A101
A102
A103
A104*
B101
B103
B104*
Surety
A201 General Conditions
13
Construction Management Delivery:
Construction Manager as Constructor (CMc)
Construction Manager at Risk (CMAR)
A201 General Conditions
A133
A134
Architect
Consultant(s)
C401 A401
CMc
Subcontractor(s)
Owner
B133
14
A201 Design-Build Family
Consultant(s) Subcontractor(s)
C141
A441C441
Design-Builder ContractorArchitect
A141
A142
B143
Owner
15
Consultant(s)
Selecting the Correct Agreement
16
Project
Type
Project
Team
Client
Type
Delivery
Method
Scope/
Complexity
Project Risk Tolerance and Complexity
Balance project complexity and need for contract protection
A105
A104
A101
A102
A103
ComplexityandRisk
Owner-Contractor
Agreements
B105
B104
Owner-Architect
Agreements
17
B101
B103
A201 Family Owner-Architect Agreements
B101: Standard Form + A201
B102: Without a Predefined Scope Services (n/a)
B103: Complex Project + A201
B104: Abbreviated Form (A201-like content embedded)
B105: Short Form (n/a)
B106: Pro Bono Services + A201
B107: Developer-Builder for Prototype(s) for Single Family Residential (n/a)
B108: Federally Funded or Federally Insured Project + A201
B109: Multi-Family Residential or Mixed Use Residential Project + A201
B121: Master Agreement (n/a)
B132: Construction Manager as Advisor Edition (n/a)
B133: Construction Manager as Constructor Edition + A201
B143: Design-Builder and Architect (n/a)
B152: Interior Design Services + A201 18
B101 Section 3.6.1.2
Construction Phase
Services:
“The Architect shall not have
control over, charge of, or
responsibility for the
construction means, methods,
techniques, sequences or
procedures, for safety
precautions and programs in
connection with the Work…”
A201 Section 4.2.2
Administration of the
Contract:
“…The Architect will not have
control over, charge of, or
responsibility for the
construction means, methods,
techniques, sequences or
procedures, or for the safety
precautions and programs in
connection with the Work…”
Cross Provision Language – Examples
19
Contract Documents
Supplemental
Conditions
for Construction
Construction
Change Directive
Specifications
Addenda
A201
General
Conditions
Change Orders
Drawings
OWNER
CONTRACTOR
AGREEMENT
20
B101 Section 3.6
Construction Phase
Services:
B101 § 3.6.1.1: “The
Architect shall provide
administration of the
Contract...as set forth
below and in AIA
Document A201–2017…”
A201 Section 4.2.1
Administration of the
Contract:
“The Architect will
provide administration of
the Contract as
described in the Contract
Documents…”
Cross Provision Language – Examples
21
22
What if the Owner and Contractor Modify A201?
If the Owner and
Contractor modify the
A201…
“those modifications
shall not affect the
Architect’s services
unless the Owner and
the Architect amend
this Agreement [B101].”
B101™-2017 § 3.6.1.1.
Architect’s Duties and Responsibilities
Section 2
Architect’s Basic Services in B101™-2017
Basic Services:
• Clear definition of Architect’s traditional services
• What any architect could be expected to do on any
design project
• Includes normal structural, mechanical, electrical
engineering
24
Architect’s Basic Services
Traditional 5 phases of services:
1. Schematic Design Phase
2. Design Development Phase
3. Construction Documents Phase
4. Bidding and Negotiation Phase
5. Construction Phase
↖ our focus today = CA
Schematic Design
Phase
Design
Development
Phase
Construction
Documents Phase
Bidding and
Negotiating Phase
Construction
Phase
25
Assumes Architect will Provide CA Services
B101 Section 3.6
Construction Phase Service:
B101 § 3.6.1.1: “The Architect shall provide
administration of the Contract...as set forth below
and in AIA Document A201™-2017…”
26
• Article 1 General Provisions
• Article 2 Owner
• Article 3 Contractor
• Article 4 Architect
• Article 5 Subcontractors
• Article 6 Construction by
Owner or by Separate
Contractors
• Article 7 Changes in the
Work
• Article 8 Time
• Article 9 Payments and
Completion
• Article 10 Protection of
Persons and Property
• Article 11 Insurance and
Bonds
• Article 12 Uncovering and
Correction of Work
• Article 13 Miscellaneous
Provisions
• Article 14 Termination or
Suspension of the Contract
• Article 15 Claims and
Disputes
A201™-2017 Review
27
Architect Responsibilities in A201
• Architect is not the Owner’s general agent
• Architect may act on behalf of the Owner only to
the extent provided in Contract Documents
• Architect’s duties and authority may not be
changed without written consent of the Owner,
Contractor, and Architect
• AIA ethical code requires that architects act
impartially
28
A201™-2017 § 4.2.2:
• Performed at intervals
appropriate for stage of
construction unless otherwise
agreed with Owner
B101™-2017 § 3.6.2.1, 4.2.3:
• Identical language re: site visit
intervals, but the number of site
visits included in basic services
may be capped.
Site Visits
29
A201™-2017 § 4.2.2:
• Become generally familiar
with and keep Owner
informed about progress
and quality of Work
• Determine, in general, if
Work is being performed in
a manner indicating that the
Work, when completed, will
be in accordance with the
Contract Documents
• No charge over safety,
unless you assume it
Site Visits (Continued)
30
A201™-2017 § 4.2.3:
In addition to keeping the
Owner “reasonably informed”
about the progress and
quality of the Work, the
Architect must report to the
Owner:
• Known deviations from
the Contract Documents
and from the most
recent construction
schedule
• Defects and deficiencies
observed in the Work.
Site Visits (Continued)
31
Reviews and Inspections
• Reject non-conforming Work and order tests
(A201 § 4.2.6)
• Conduct inspections to determine substantial
completion and final completion dates
(A201 § 4.2.9)
32
Interpretations
• § 4.2.11: on written request, the Architect shall
interpret and decide matters concerning
performance under and requirements of Contract
Documents
• § 4.2.12: when making interpretations or decisions,
Architect must endeavor to secure faithful
performance by both Owner and Contractor; will
not show partiality to either
Not liable for results of interpretations or decisions
rendered in good faith (unless you breach your contract or
standard of care)
33
Requests for Information (RFIs)
A201 § 4.2.14
• Architect shall review and respond to RFIs about the
Contract Documents. Responses will be provided in writing
and within the time limits agreed upon or otherwise with
reasonable promptness
B101 § 4.2.2.2
• If the Architect responds to an RFI not prepared in
accordance with the requirements of the Contract
Documents or to an RFI where such information is available
from careful review of the Contract Documents, the
Architect is entitled to additional compensation.
34
Changes in the Work
• Prepare
• Change Orders
(A201 § 4.2.8 & 7.2)
• Construction Change Directives
(A201 § 4.2.8 & 7.3)
• Order
• minor changes in the Work
(A201 § 4.2.8 & § 7.4)
35
Payments
A201 § 4.2.5:
• Review and certify amounts due Contractor and
issue certificates for payment
A201 § 9.4.2:
• Architect’s certificate of payment (G702-1992) is a
representation to the Owner that to the best of the
Architect’s knowledge, information and belief, the
Work has progressed to the point indicated, and
that the quality of the Work is in accordance with
the Contract Documents
36
Payments (Continued)
• The Architect’s issuance of a Certificate for Payment
triggers the Owner’s obligation to pay the
Contractor (A201 § 9.6.1)
• The Owner is required to notify the Architect when
payment is made to the Contractor (A201 § 9.6.1)
37
Payments (Continued)
A201 § 9.7
• If the Architect fails to issue a Certificate for
Payment within 7 days of receiving the Contractor’s
Application, the Contractor may provide written
notice to the Architect. If the Contractor does not
receive payment of amounts owed within 7 days of
written notice, Contractor may stop the Work until
it is paid.
• If this happens, the Contract Time shall be adjusted
and the Contract Sum shall be adjusted for costs
the Contractor reasonably incurred during Work
Stoppage.
38
Payments (Continued)
A201 § 9.5.1 – Withhold or Nullify Certifications
• Architect may withhold certification to the extent
reasonably necessary to protect the Owner
• Architect may nullify in whole or in part a
Certificate for Payment previously issued to protect
the Owner from loss for which the Contractor is
responsible
• When reasons for withholding/nullifying are
removed a new certification will be issued for the
withheld amounts
39
Payments (Continued)
7 Reasons to nullify or withhold certifications:
1. Un-remedied Defective Work;
2. Third party claims filed or reasonable evidence of probable claims
unless security acceptable to the Owner is provided by the Contractor;
3. Contractor’s failure to make payments properly to Subcontractors or
for labor, materials or equipment;
4. Reasonable evidence that the Work cannot be completed for the
unpaid balance of the Contract Sum;
5. Any damage to the Owner or a separate contractor;
6. Reasonable evidence that the work will not be completed within the
Contract Time, and that the unpaid balance would not be adequate to
cover actual or liquidated damages for the anticipated delay; or
7. Repeated failure to carry out the Work in accordance with the Contract
Documents.
40
Concealed or Unknown Conditions
A201 § 3.7.4
• If the Contractor encounters subsurface or
concealed conditions that differ materially from
those indicated in the Contract Documents, the
Contractor must notify the Owner and Architect.
• Architect must conduct a “prompt investigation”
upon receipt of Contractor’s notice and report in
writing on the results.
41
Concealed or Unknown Conditions (Continued)
The Architect’s Investigation
• If the Architect determines conditions
• DO differ materially and cause an increase or decrease in
the Contractor’s cost of, or time required for, the Work,
will recommend an equitable adjustment in the Contract
Sum and/or Contract Time.
• DO NOT differ materially and that no change in the
terms of the Contract is justified, the Architect shall
promptly notify the Owner and Contractor in writing,
stating the reasons.
42
Initial Decision Maker (IDM)
A201 § 15.2.1
• Unless Owner and Contract otherwise agree, Architect serves
as IDM
• Initial decision by IDM is a condition precedent to mediation of
disputes between Owner and Contractor
B101 § 3.6.2.5
• Unless Owner and Contractor designate another, Architect is
the IDM
• The Architect’s role as IDM is included as a Basic Service
• Assisting IDM (if other than Architect) is an Additional Service
43
Initial Decision Maker (IDM) (Continued)
• The IDM is required to review Claims and render a
decision or take other action within 10 days
(A201 § 15.2)
• IDM is required to approve or reject Claims by
written decision
44
Submittal Reviews
A201 § 4.2.7
• Architect reviews submittals in accordance with
approved submittal schedule for limited purpose of
checking for conformance with information given
and design concept expressed in the Contract
Documents
• If no submittal schedule:
• Architect reviews with reasonable promptness allowing
sufficient time for adequate review in Architect’s
professional judgment
45
Submittal Reviews (Continued)
A201 § 4.2.7
• Review of submittals is not to determine accuracy
and completeness or substantiating installation
instructions for performance of equipment or
systems.
• Review shall not constitute approval of safety
precautions or any constructions means, methods,
techniques, sequences, or procedures.
• The Architect’s approval of a specific item shall not
indicate approval of an assembly of which the item
is a component.
46
Submittal Reviews (Continued)
• Contractor shall review required submittals for
compliance with Contract Documents and submit
to Architect. (A201 § 3.12.5)
• Submittal by Contractor represents that it has
• Reviewed and approved them,
• Determined and verified materials, field measurements,
and field construction data (or will do so), and
• Checked and coordinated information contained in
submittal with the requirements of the Work and
Contract Documents. (A201 § 3.12.6)
47
Architect not responsible for:
• Contractor’s failure to perform the Work in accordance
with the Contract Documents
(B101 § 3.6.1.2)
• Construction means, methods, techniques, sequences
or procedures, or for the safety precautions and
programs in connection with the work
(B101 § 3.6.1.2)
• The Architect shall not be responsible for an Owner’s
directive or substitution, or for the Owner’s
acceptance of non-conforming Work…
(B101 § 3.1.4)
48
Responsibility for Safety
A201 § 3.3.1
• If the Contract Documents give specific instructions
concerning construction means, methods,
techniques, sequences or procedures
• Contractor shall evaluate the jobsite safety thereof
and shall be solely responsible for the jobsite safety
of such means, methods, techniques, sequences, or
procedures
49
Responsibility for Safety (Continued)
A201 § 3.3.1 (cont’d)
• If Contractor determines that such means,
methods, techniques, sequences or procedures
may not be safe, the Contractor shall give timely
notice to the Owner and Architect, and shall
propose alternate options.
• The Architect shall evaluate the proposed
alternative solely for conformance with the design
intent for the completed construction.
50
Responsibility for Safety (Continued)
A201 § 3.3.1 (cont’d)
• Unless the Architect objects to the Contractor’s
proposed alternative, the Contractor shall perform
the Work using its alternative means, methods,
techniques, sequences, or procedures.
51
Quality of Contract Documents
A201™-2017 § 1.2.1
“The intent of the Contract Documents is to include
all items necessary for the proper execution and
completion of the Work by the Contractor. The
Contract Documents are complementary, and what is
required by one shall be as binding as if required by
all; performance by the Contractor shall be required
only to the extent consistent with the Contract
Documents and reasonably inferable from them as
being necessary to produce the indicated results.”
52
Who is the only
construction project
participant with the
ability to provide the
Owner the information
that will permit the
Owner to meet their
commitments to the
Contractor?
(Please get this right!)
53
YOU GUESSED IT . . .
THE ARCHITECT!
54
Contractor’s Duties under A201
Section 3
56
Understanding CA Responsibilities
• Traditional Design and Construction
Administration duties:
B101, B103—same
• Understand the A201 for Contractor
duties and obligations:
coordination, quality, scheduling,
submittal schedule, RFI procedure
57
Contractor Responsibilities
• Defined in General Conditions of the Contract for
Construction (AIA A201™-2007)
• Further defined in Division 1 of the Specifications
• Article 1 General Provisions
• Article 2 Owner
• Article 3 Contractor
• Article 4 Architect
• Article 5 Subcontractors
• Article 6 Construction by
Owner or by Separate
Contractors
• Article 7 Changes in the
Work
• Article 8 Time
• Article 9 Payments and
Completion
• Article 10 Protection of
Persons and Property
• Article 11 Insurance and
Bonds
• Article 12 Uncovering and
Correction of Work
• Article 13 Miscellaneous
Provisions
• Article 14 Termination or
Suspension of the Contract
• Article 15 Claims and
Disputes
A201™-2017 Contractor Responsibilities
58
59
Contractor Responsibilities
• Qualified and licensed
• Permits, fees, compliance
• Labor, materials, tools
• Supervise and direct the Work
• Communicate with Owner and A/E
60
Contractor Responsibilities
• Read and understand Contract Documents
(complementary)
• Review field conditions and identify issues
• Recommend solutions prior to submitting RFIs (Div 1)
61
Supervision and Construction Procedures
• Site logistics, storage
• Means, methods, techniques, sequences, and
procedures
• Jobsite safety (also Article 10)
• Supervise personnel
• Assure quality of construction
Management and Supervision
• Qualified management and
superintendent
• Project coordination (Div 1)
• Mechanical-Electrical work
coordination (Div 1)
62
Schedule
• Prepare project construction
schedule
• Update construction progress
schedule
• Conduct project meetings
• Identify change conditions
63
Submittals
• Submittal schedule
• Review and approve submittals
prior to transmittal to DP
• Provide engineering certifications
required by specs
• Coordinate with other elements
• Adhere to submittal schedule
64
Insurance and Bonds Article 11
65
• Contractor’s Liability Insurance
• CGL, Auto, Workers’ Compensation, Property Damage,
Bodily and Personal Injury
• Certificates of Insurance
• Name Owner, Architect and Architect’s Consultants as
Additional Insured
• Owner’s Insurance: Property, Boiler/Machinery,
Loss of Use
• Waiver of Subrogation
• Performance and Payment Bonds if/as required in
the Contract Documents
The New Insurance Exhibit
66
• Form-based format
• Allows flexibility in a
changing insurance market
• Appropriate coverage for
the project
• Appropriate responsibility
to provide the coverage
What’s in the Insurance Exhibit?
67
• Substance and specifics of most, but not all, A201
insurance provisions
• Owner’s Insurance
• Contractor’s Insurance
• Optional Extended Property Insurances
• Other Types of Insurance
• Additional Insureds
• Performance and Payment Bonds
The New Sustainable Projects Exhibit
E204-2017
68
• One contract exhibit applicable to
• Owner
• Contractor
• Architect (and Consultants)
• Roles and responsibilities of each
project participant for projects
with a sustainable goal
AIA Resources
© 2019 Berkley Design Professional
Contacts & Resources
AIA Contract Documents – Resources
https://www.aiacontracts.org/learn/
(Filter: Guides, Comparisons, Diagrams,
Commentary, other)
AIA Contract Documents education on AIAU:
aiau.aia.org/aia-contract-documents
Questions about AIA document content:
Email: docinfo@aia.org
Tel.: (202) 626-7526
Questions about ACD5:
Email: docstechsupport@aia.org
Tel.: (800) 942-7732
70
To view comparisons
between the 2007/2017
documents, visit:
https://www.aiacontracts.org/cont
ract-doc-pages/67216-2017-aia-
contract-documents
71
Questions?
Andrew D. Mendelson, FAIA
Berkley Design Professional
amendelson@berkleydp.com
(312) 340-3475
www.berkleydp.com
Jeremy S. Baker
Schiff Hardin LLP
jbaker@schiffhardin.com
(312) 258-5506
www.schiffhardin.com
Please connect:
https://twitter.com/builderlawyer
https://www.linkedin.com/in/jeremysbaker
Attorney Responsible for Content: Jeremy S. Baker
This publication has been prepared for the general information of clients and friends of the firm. It is not intended to
provide legal advice with respect to any specific matter. Under rules applicable to the professional conduct of
attorneys in various jurisdictions, it may be considered attorney advertising material. Prior results do not guarantee a
similar outcome.
This concludes The American Institute of Architects
Continuing Education Systems Course
For AIA CES Learning Unit reporting or to obtain a
certificate of completion, please contact:
Risk-Support@BerkleyDP.com
831-293-6248

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Understanding AIA Document A201-2017, General Conditions of Construction Contract

  • 1. Click to edit Master title style Understanding AIA Document A201™-2017 GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
  • 2. Berkley Design Professional Our mission is to offer the right combination of products and services that help design professionals improve and protect their businesses. • Dedicated to the Design Industry • Expert Underwriters • Expert Claims Service • Real-world Risk Management Education Products and services are provided by one or more insurance company subsidiaries of W. R. Berkley Corporation. Not all products and services are available in every jurisdiction, and the precise coverage afforded by any insurer is subject to the actual terms and conditions of the policies as issued.
  • 3. 3 Berkley Design Professional is a registered provider of AIA-approved continuing education under Provider Number 40107869. All registered AIA CES Providers must comply with the AIA Standards for Continuing Education Programs. Any questions or concerns about this provider or this learning program may be sent to AIA CES (cessupport@aia.org or (800) AIA 3837, Option 3). This learning program is registered with AIA CES for continuing professional education. As such, it does not include content that may be deemed or construed to be an approval or endorsement by the AIA of any material of construction or any method or manner of handling, using, distributing, or dealing in any material or product. AIA continuing education credit has been reviewed and approved by AIA CES. Learners must complete the entire learning program to receive continuing education credit. AIA continuing education Learning Units earned upon completion of this course will be reported to AIA CES for AIA members. Certificates of Completion for both AIA members and non-AIA members are available upon request. AIA Registered Provider & Approved Program
  • 4. © 2019 Berkley Design Professional 4 This presentation is protected by US and International Copyright laws. Reproduction, distribution, display and use of the presentation without written permission of the speaker is prohibited. Information provided by Berkley Design Professional and Schiff Hardin is for general interest and risk management purposes only and should not be construed as legal advice nor confirmation of insurance coverage. As laws regarding the use and enforceability of the information contained herein will vary depending upon jurisdiction, the user of the information should consult with an attorney experienced in the laws and regulations of the appropriate jurisdiction for the full legal implications of the information. Practice management recommendations should be carefully reviewed and adapted for the particular project requirements, firm standards and protocols established by the design professional. Legal Notices
  • 5. Presented by 5 Andrew D. Mendelson, FAIA SVP, Chief Risk Management Officer Berkley Design Professional • Licensed architect with 36+ years in practice • PM, Market Leader, Contract Officer, CFO, Director of Practice Management • Member of the AIA Documents Committee 2003-2017 and LFRT Legal Committee 2000-2010, ACEC Risk Management Committee • Risk Management Education from the practitioner’s perspective
  • 6. Presented by Jeremy S. Baker Partner, Construction Law Group Schiff Hardin LLP • Represents design professionals, owners, developers, and contractors in all aspects of design and construction • Jeremy’s practice involves project structuring across many project delivery methods, plus contract review and negotiation • Has prosecuted and defended lawsuits in well over 30 state and federal court venues – but he prefers to resolve disputes using cost-efficient alternative dispute resolution 6
  • 7. Webinar Agenda 7 A201™ Document Family Architect’s Duties and Responsibilities Contractor’s Duties and Responsibilities
  • 8. • Most widely used contract form • Likely very important until 2027 • 309 mentions of “Architect” • CA is a major source of fees • Some groups seek to diminish the Architect’s role in CA 8 A201™-2017: Why Architects Should Care
  • 9. • Standard form documents since 1888 (129 years) • Evolved to reflect practices in the construction industry • Substantial volume of interpretive case law (AIA Legal Citator) • Major agreements revised on 10-year cycle • Now, nearly 200 agreements and forms History
  • 10. • The Industry Standard • Fair and balanced • Balancing competing interests • Put risk where it is best managed Objectives
  • 13. A201 “Family” of Documents Consultant(s) Subcontractor(s) A310 A312 A401C401 Owner ContractorArchitect A101 A102 A103 A104* B101 B103 B104* Surety A201 General Conditions 13
  • 14. Construction Management Delivery: Construction Manager as Constructor (CMc) Construction Manager at Risk (CMAR) A201 General Conditions A133 A134 Architect Consultant(s) C401 A401 CMc Subcontractor(s) Owner B133 14
  • 15. A201 Design-Build Family Consultant(s) Subcontractor(s) C141 A441C441 Design-Builder ContractorArchitect A141 A142 B143 Owner 15 Consultant(s)
  • 16. Selecting the Correct Agreement 16 Project Type Project Team Client Type Delivery Method Scope/ Complexity
  • 17. Project Risk Tolerance and Complexity Balance project complexity and need for contract protection A105 A104 A101 A102 A103 ComplexityandRisk Owner-Contractor Agreements B105 B104 Owner-Architect Agreements 17 B101 B103
  • 18. A201 Family Owner-Architect Agreements B101: Standard Form + A201 B102: Without a Predefined Scope Services (n/a) B103: Complex Project + A201 B104: Abbreviated Form (A201-like content embedded) B105: Short Form (n/a) B106: Pro Bono Services + A201 B107: Developer-Builder for Prototype(s) for Single Family Residential (n/a) B108: Federally Funded or Federally Insured Project + A201 B109: Multi-Family Residential or Mixed Use Residential Project + A201 B121: Master Agreement (n/a) B132: Construction Manager as Advisor Edition (n/a) B133: Construction Manager as Constructor Edition + A201 B143: Design-Builder and Architect (n/a) B152: Interior Design Services + A201 18
  • 19. B101 Section 3.6.1.2 Construction Phase Services: “The Architect shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, for safety precautions and programs in connection with the Work…” A201 Section 4.2.2 Administration of the Contract: “…The Architect will not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work…” Cross Provision Language – Examples 19
  • 20. Contract Documents Supplemental Conditions for Construction Construction Change Directive Specifications Addenda A201 General Conditions Change Orders Drawings OWNER CONTRACTOR AGREEMENT 20
  • 21. B101 Section 3.6 Construction Phase Services: B101 § 3.6.1.1: “The Architect shall provide administration of the Contract...as set forth below and in AIA Document A201–2017…” A201 Section 4.2.1 Administration of the Contract: “The Architect will provide administration of the Contract as described in the Contract Documents…” Cross Provision Language – Examples 21
  • 22. 22 What if the Owner and Contractor Modify A201? If the Owner and Contractor modify the A201… “those modifications shall not affect the Architect’s services unless the Owner and the Architect amend this Agreement [B101].” B101™-2017 § 3.6.1.1.
  • 23. Architect’s Duties and Responsibilities Section 2
  • 24. Architect’s Basic Services in B101™-2017 Basic Services: • Clear definition of Architect’s traditional services • What any architect could be expected to do on any design project • Includes normal structural, mechanical, electrical engineering 24
  • 25. Architect’s Basic Services Traditional 5 phases of services: 1. Schematic Design Phase 2. Design Development Phase 3. Construction Documents Phase 4. Bidding and Negotiation Phase 5. Construction Phase ↖ our focus today = CA Schematic Design Phase Design Development Phase Construction Documents Phase Bidding and Negotiating Phase Construction Phase 25
  • 26. Assumes Architect will Provide CA Services B101 Section 3.6 Construction Phase Service: B101 § 3.6.1.1: “The Architect shall provide administration of the Contract...as set forth below and in AIA Document A201™-2017…” 26
  • 27. • Article 1 General Provisions • Article 2 Owner • Article 3 Contractor • Article 4 Architect • Article 5 Subcontractors • Article 6 Construction by Owner or by Separate Contractors • Article 7 Changes in the Work • Article 8 Time • Article 9 Payments and Completion • Article 10 Protection of Persons and Property • Article 11 Insurance and Bonds • Article 12 Uncovering and Correction of Work • Article 13 Miscellaneous Provisions • Article 14 Termination or Suspension of the Contract • Article 15 Claims and Disputes A201™-2017 Review 27
  • 28. Architect Responsibilities in A201 • Architect is not the Owner’s general agent • Architect may act on behalf of the Owner only to the extent provided in Contract Documents • Architect’s duties and authority may not be changed without written consent of the Owner, Contractor, and Architect • AIA ethical code requires that architects act impartially 28
  • 29. A201™-2017 § 4.2.2: • Performed at intervals appropriate for stage of construction unless otherwise agreed with Owner B101™-2017 § 3.6.2.1, 4.2.3: • Identical language re: site visit intervals, but the number of site visits included in basic services may be capped. Site Visits 29
  • 30. A201™-2017 § 4.2.2: • Become generally familiar with and keep Owner informed about progress and quality of Work • Determine, in general, if Work is being performed in a manner indicating that the Work, when completed, will be in accordance with the Contract Documents • No charge over safety, unless you assume it Site Visits (Continued) 30
  • 31. A201™-2017 § 4.2.3: In addition to keeping the Owner “reasonably informed” about the progress and quality of the Work, the Architect must report to the Owner: • Known deviations from the Contract Documents and from the most recent construction schedule • Defects and deficiencies observed in the Work. Site Visits (Continued) 31
  • 32. Reviews and Inspections • Reject non-conforming Work and order tests (A201 § 4.2.6) • Conduct inspections to determine substantial completion and final completion dates (A201 § 4.2.9) 32
  • 33. Interpretations • § 4.2.11: on written request, the Architect shall interpret and decide matters concerning performance under and requirements of Contract Documents • § 4.2.12: when making interpretations or decisions, Architect must endeavor to secure faithful performance by both Owner and Contractor; will not show partiality to either Not liable for results of interpretations or decisions rendered in good faith (unless you breach your contract or standard of care) 33
  • 34. Requests for Information (RFIs) A201 § 4.2.14 • Architect shall review and respond to RFIs about the Contract Documents. Responses will be provided in writing and within the time limits agreed upon or otherwise with reasonable promptness B101 § 4.2.2.2 • If the Architect responds to an RFI not prepared in accordance with the requirements of the Contract Documents or to an RFI where such information is available from careful review of the Contract Documents, the Architect is entitled to additional compensation. 34
  • 35. Changes in the Work • Prepare • Change Orders (A201 § 4.2.8 & 7.2) • Construction Change Directives (A201 § 4.2.8 & 7.3) • Order • minor changes in the Work (A201 § 4.2.8 & § 7.4) 35
  • 36. Payments A201 § 4.2.5: • Review and certify amounts due Contractor and issue certificates for payment A201 § 9.4.2: • Architect’s certificate of payment (G702-1992) is a representation to the Owner that to the best of the Architect’s knowledge, information and belief, the Work has progressed to the point indicated, and that the quality of the Work is in accordance with the Contract Documents 36
  • 37. Payments (Continued) • The Architect’s issuance of a Certificate for Payment triggers the Owner’s obligation to pay the Contractor (A201 § 9.6.1) • The Owner is required to notify the Architect when payment is made to the Contractor (A201 § 9.6.1) 37
  • 38. Payments (Continued) A201 § 9.7 • If the Architect fails to issue a Certificate for Payment within 7 days of receiving the Contractor’s Application, the Contractor may provide written notice to the Architect. If the Contractor does not receive payment of amounts owed within 7 days of written notice, Contractor may stop the Work until it is paid. • If this happens, the Contract Time shall be adjusted and the Contract Sum shall be adjusted for costs the Contractor reasonably incurred during Work Stoppage. 38
  • 39. Payments (Continued) A201 § 9.5.1 – Withhold or Nullify Certifications • Architect may withhold certification to the extent reasonably necessary to protect the Owner • Architect may nullify in whole or in part a Certificate for Payment previously issued to protect the Owner from loss for which the Contractor is responsible • When reasons for withholding/nullifying are removed a new certification will be issued for the withheld amounts 39
  • 40. Payments (Continued) 7 Reasons to nullify or withhold certifications: 1. Un-remedied Defective Work; 2. Third party claims filed or reasonable evidence of probable claims unless security acceptable to the Owner is provided by the Contractor; 3. Contractor’s failure to make payments properly to Subcontractors or for labor, materials or equipment; 4. Reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; 5. Any damage to the Owner or a separate contractor; 6. Reasonable evidence that the work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or 7. Repeated failure to carry out the Work in accordance with the Contract Documents. 40
  • 41. Concealed or Unknown Conditions A201 § 3.7.4 • If the Contractor encounters subsurface or concealed conditions that differ materially from those indicated in the Contract Documents, the Contractor must notify the Owner and Architect. • Architect must conduct a “prompt investigation” upon receipt of Contractor’s notice and report in writing on the results. 41
  • 42. Concealed or Unknown Conditions (Continued) The Architect’s Investigation • If the Architect determines conditions • DO differ materially and cause an increase or decrease in the Contractor’s cost of, or time required for, the Work, will recommend an equitable adjustment in the Contract Sum and/or Contract Time. • DO NOT differ materially and that no change in the terms of the Contract is justified, the Architect shall promptly notify the Owner and Contractor in writing, stating the reasons. 42
  • 43. Initial Decision Maker (IDM) A201 § 15.2.1 • Unless Owner and Contract otherwise agree, Architect serves as IDM • Initial decision by IDM is a condition precedent to mediation of disputes between Owner and Contractor B101 § 3.6.2.5 • Unless Owner and Contractor designate another, Architect is the IDM • The Architect’s role as IDM is included as a Basic Service • Assisting IDM (if other than Architect) is an Additional Service 43
  • 44. Initial Decision Maker (IDM) (Continued) • The IDM is required to review Claims and render a decision or take other action within 10 days (A201 § 15.2) • IDM is required to approve or reject Claims by written decision 44
  • 45. Submittal Reviews A201 § 4.2.7 • Architect reviews submittals in accordance with approved submittal schedule for limited purpose of checking for conformance with information given and design concept expressed in the Contract Documents • If no submittal schedule: • Architect reviews with reasonable promptness allowing sufficient time for adequate review in Architect’s professional judgment 45
  • 46. Submittal Reviews (Continued) A201 § 4.2.7 • Review of submittals is not to determine accuracy and completeness or substantiating installation instructions for performance of equipment or systems. • Review shall not constitute approval of safety precautions or any constructions means, methods, techniques, sequences, or procedures. • The Architect’s approval of a specific item shall not indicate approval of an assembly of which the item is a component. 46
  • 47. Submittal Reviews (Continued) • Contractor shall review required submittals for compliance with Contract Documents and submit to Architect. (A201 § 3.12.5) • Submittal by Contractor represents that it has • Reviewed and approved them, • Determined and verified materials, field measurements, and field construction data (or will do so), and • Checked and coordinated information contained in submittal with the requirements of the Work and Contract Documents. (A201 § 3.12.6) 47
  • 48. Architect not responsible for: • Contractor’s failure to perform the Work in accordance with the Contract Documents (B101 § 3.6.1.2) • Construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the work (B101 § 3.6.1.2) • The Architect shall not be responsible for an Owner’s directive or substitution, or for the Owner’s acceptance of non-conforming Work… (B101 § 3.1.4) 48
  • 49. Responsibility for Safety A201 § 3.3.1 • If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures • Contractor shall evaluate the jobsite safety thereof and shall be solely responsible for the jobsite safety of such means, methods, techniques, sequences, or procedures 49
  • 50. Responsibility for Safety (Continued) A201 § 3.3.1 (cont’d) • If Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely notice to the Owner and Architect, and shall propose alternate options. • The Architect shall evaluate the proposed alternative solely for conformance with the design intent for the completed construction. 50
  • 51. Responsibility for Safety (Continued) A201 § 3.3.1 (cont’d) • Unless the Architect objects to the Contractor’s proposed alternative, the Contractor shall perform the Work using its alternative means, methods, techniques, sequences, or procedures. 51
  • 52. Quality of Contract Documents A201™-2017 § 1.2.1 “The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results.” 52
  • 53. Who is the only construction project participant with the ability to provide the Owner the information that will permit the Owner to meet their commitments to the Contractor? (Please get this right!) 53
  • 54. YOU GUESSED IT . . . THE ARCHITECT! 54
  • 55. Contractor’s Duties under A201 Section 3
  • 56. 56 Understanding CA Responsibilities • Traditional Design and Construction Administration duties: B101, B103—same • Understand the A201 for Contractor duties and obligations: coordination, quality, scheduling, submittal schedule, RFI procedure
  • 57. 57 Contractor Responsibilities • Defined in General Conditions of the Contract for Construction (AIA A201™-2007) • Further defined in Division 1 of the Specifications
  • 58. • Article 1 General Provisions • Article 2 Owner • Article 3 Contractor • Article 4 Architect • Article 5 Subcontractors • Article 6 Construction by Owner or by Separate Contractors • Article 7 Changes in the Work • Article 8 Time • Article 9 Payments and Completion • Article 10 Protection of Persons and Property • Article 11 Insurance and Bonds • Article 12 Uncovering and Correction of Work • Article 13 Miscellaneous Provisions • Article 14 Termination or Suspension of the Contract • Article 15 Claims and Disputes A201™-2017 Contractor Responsibilities 58
  • 59. 59 Contractor Responsibilities • Qualified and licensed • Permits, fees, compliance • Labor, materials, tools • Supervise and direct the Work • Communicate with Owner and A/E
  • 60. 60 Contractor Responsibilities • Read and understand Contract Documents (complementary) • Review field conditions and identify issues • Recommend solutions prior to submitting RFIs (Div 1)
  • 61. 61 Supervision and Construction Procedures • Site logistics, storage • Means, methods, techniques, sequences, and procedures • Jobsite safety (also Article 10) • Supervise personnel • Assure quality of construction
  • 62. Management and Supervision • Qualified management and superintendent • Project coordination (Div 1) • Mechanical-Electrical work coordination (Div 1) 62
  • 63. Schedule • Prepare project construction schedule • Update construction progress schedule • Conduct project meetings • Identify change conditions 63
  • 64. Submittals • Submittal schedule • Review and approve submittals prior to transmittal to DP • Provide engineering certifications required by specs • Coordinate with other elements • Adhere to submittal schedule 64
  • 65. Insurance and Bonds Article 11 65 • Contractor’s Liability Insurance • CGL, Auto, Workers’ Compensation, Property Damage, Bodily and Personal Injury • Certificates of Insurance • Name Owner, Architect and Architect’s Consultants as Additional Insured • Owner’s Insurance: Property, Boiler/Machinery, Loss of Use • Waiver of Subrogation • Performance and Payment Bonds if/as required in the Contract Documents
  • 66. The New Insurance Exhibit 66 • Form-based format • Allows flexibility in a changing insurance market • Appropriate coverage for the project • Appropriate responsibility to provide the coverage
  • 67. What’s in the Insurance Exhibit? 67 • Substance and specifics of most, but not all, A201 insurance provisions • Owner’s Insurance • Contractor’s Insurance • Optional Extended Property Insurances • Other Types of Insurance • Additional Insureds • Performance and Payment Bonds
  • 68. The New Sustainable Projects Exhibit E204-2017 68 • One contract exhibit applicable to • Owner • Contractor • Architect (and Consultants) • Roles and responsibilities of each project participant for projects with a sustainable goal
  • 70. © 2019 Berkley Design Professional Contacts & Resources AIA Contract Documents – Resources https://www.aiacontracts.org/learn/ (Filter: Guides, Comparisons, Diagrams, Commentary, other) AIA Contract Documents education on AIAU: aiau.aia.org/aia-contract-documents Questions about AIA document content: Email: docinfo@aia.org Tel.: (202) 626-7526 Questions about ACD5: Email: docstechsupport@aia.org Tel.: (800) 942-7732 70
  • 71. To view comparisons between the 2007/2017 documents, visit: https://www.aiacontracts.org/cont ract-doc-pages/67216-2017-aia- contract-documents 71
  • 72. Questions? Andrew D. Mendelson, FAIA Berkley Design Professional amendelson@berkleydp.com (312) 340-3475 www.berkleydp.com Jeremy S. Baker Schiff Hardin LLP jbaker@schiffhardin.com (312) 258-5506 www.schiffhardin.com Please connect: https://twitter.com/builderlawyer https://www.linkedin.com/in/jeremysbaker
  • 73. Attorney Responsible for Content: Jeremy S. Baker This publication has been prepared for the general information of clients and friends of the firm. It is not intended to provide legal advice with respect to any specific matter. Under rules applicable to the professional conduct of attorneys in various jurisdictions, it may be considered attorney advertising material. Prior results do not guarantee a similar outcome.
  • 74. This concludes The American Institute of Architects Continuing Education Systems Course For AIA CES Learning Unit reporting or to obtain a certificate of completion, please contact: Risk-Support@BerkleyDP.com 831-293-6248