As anyone who is taking the time to read this blog probably knows, the American Institute of Architects (AIA) construction contract forms are omnipresent. Which means you also probably know that in April 2017 the AIA released an update to its A201 general conditions form, last updated in 2007.

While many of the changes were discussed, researched, written and lectured about last summer, including by me, I’ve recently started to field a lot of questions about the 2017 changes to the AIA documents, A201 in particular. This is no surprise, I suppose. After the 2007 AIA forms were released, it took a year or two before the updated forms were used more frequently.

In light of these recent questions, now seems like a good time to summarize a few of the differences between A201-2007 and A201-2017.

§1.1.8 Initial Decision Maker

A201-2017 adds a sentence shielding the Initial Decision Maker (IDM) from liability for “interpretations or decisions rendered in good faith.” While this new sentence requires the IDM to act in good faith, it nevertheless appears to be a broad liability waiver for someone who could be making key decisions relating to cost, time and scope.

§ 1.2.1.1 Savings Clause

A “savings” clause has been added to A201-2017 – meaning that if a court finds that part of the agreement violates the law or is otherwise unenforceable, the remainder of the contract is nevertheless enforceable. Further, if a section is deemed unenforceable, the court may revise the section to make it legal rather than throwing out the entire section.

§1.6 Notice

Whenever “notice” is required by A201-2017, such notice is now required to be in writing. Continue Reading A201-2017: A Brief Summary of the Differences a Decade Makes

Formal design-build agreements are used by property owners in circumstances where a single firm is hired that will be responsible for both designing and constructing a project. Sometimes projects fall into this category by default.  For example, a contract that simply states the contractor will install a bill of materials, without reference to plans, is in fact a design-build agreement—but may leave unclear who is responsible for the actual design of the construction.  This can lead to numerous problems down the road.  Fortunately, the American Institute of Architects (AIA) publishes a commonly-used form for design-build agreement forms, the AIA A141. This AIA form may be worthy of consideration when choosing among starting points for a design-build project – but I recommend proceeding with caution.

The AIA recently published a 2014 update to the 2004 A141 form, and the 2004 form will no longer be available for use after 2015.  The 2014 updated form includes a variety of modifications.  Some clarify 2004 provisions, some simplify the form, and some change the risks and responsibilities of the parties.

Of particular note is that the 2014 form includes a key structural change from the 2004 from.  Continue Reading New AIA Design-Build Agreement: The Waiting Game