The American Institute of Architects (AIA) design and construction contract forms are probably the most widely used contracts in the construction industry.
They define the legal relationships between the Owner, the Contractor, and the Architect. The obligations, and the recourse each party has if the other parties fail to meet these obligations, are outlined in the contracts. Traditionally, the forms recognize that the Architect serves as the Owner’s representative, and that all communications between the Owner and the Contractor flow through the Architect.
Builders have argued for years that the forms are unfairly biased to protect the interests of Architects at the expense of Contractors. Whether this is a valid concern is an open question.
In April 2017, updated AIA forms became available. This is the first revision since 2007. The updates appear to provide Contractors with more avenues of recourse should a dispute arise.
The new forms have what Justin L. Weisberg, writing in the KL Construction Law Blog, characterizes as “significant changes.”
I recommend you read his article, which I summarize below.
- The Building Information Modeling and Digital Data Exhibit (E201-2013) “requires the parties to create a digital data protocol and, if building information modeling (“BIM”) is to be used, create a BIM modeling protocol…Any reliance by the Owner or Contractor upon digital data or a building information model without the completion and incorporation of the E203-2013 is at the relying party’s sole risk.”
- The Sustainable Projects Exhibit addresses the parties’ obligations in sustainable projects being built to comply with certification requirements.
- “The A-201 now provides for direct communication between the Owner and the Contractor.” If the discussions involve the duties of the Architect, it must be included in the conversation.
- “The method of calculation for progress payments has been revised.” The new formula for computing these calculations is very specific and somewhat complex.
- “The list of amounts that the Architect is authorized to refuse to certify under the General Conditions remains unchanged…”
- Insurance provisions have been revised. This is, according to Mr. Weisberg, “a major change.”
- Both the Contractor and the Owner can now request financial information from the other party if they have “reasonable concerns” about the other party’s ability to fulfill its financial obligations.
Mr. Weisberg lists four additional areas where significant changes have been made. Again, for more details about these changes I recommend you read his article.
He recommends Contractors consult their attorneys and familiarize themselves with the revised requirements before using the new forms.
PREPARING FOR THE CHANGS IN THE NEW AIA 2017 FORMS Justin L. Weisberg, K L Construction Law Blog, Nov. 6, 2017.