What is the AIA Architect Consultant Agreement?
An AIA Architect Consultant Agreement is a standardized contract document for use between an architect and a consultant. It is promulgated by the American Institute of Architects and follows a customary, sequential numbering system from the AIA’s Document "family" of contract documents. In this case, the AIA Document in question is AIA Document C401-2001. This particular document is from the AIA’s form series governing Services and Construction with the intent to provide a standard form of agreement for use between an architect and a consultant.
The purpose of this document is to provide a standardized agreement for a consultant to provide services to an architect with respect to a particular project . The consultant may be an individual or other legal entity providing such services. The services for which the consultant is contracted pursuant to this document include a wide range of professional services. Examples of these services include – but are not limited to – the services of: interior designers; engineers (including civil, structural, mechanical, electrical and land surveying); landscape architects; space planners; economists; schedulers; contract administration specialists; cost estimators; and services performed by any other person or entity that the architect may require on a project.
The Parts of the Agreement
The AIA Architect Consultant Agreement includes several key components that are crucial for the successful collaboration between architects and consultants. The first component is the scope of work, which outlines the specific services and tasks to be carried out by the consultant. This section should be comprehensive, detailing every aspect of the consultant’s responsibilities. The scope of work must accurately reflect the project’s needs and the consultant’s expertise, as any discrepancies could lead to conflicts or a failure to meet project expectations.
The agreement also details the compensation structure for the consultant’s services. This is a vital section since it directly relates to the budget and financial management of the project. Compensation can be structured in various ways such as a fixed fee, hourly rate, or a percentage of the project cost, and should be clearly defined in the agreement. The compensation terms should also include information on reimbursements for expenses and the payment after the architect has paid the consultant.
In addition to the above, the AIA Architect Consultant Agreement should clearly define the timeline of services. This includes project milestones, deadlines for deliverables, as well as the start and completion dates for the consultant’s work. Having a clear timeline helps in the effective coordination of the various stages of the project and ensures that timely progress can be maintained throughout the course of the architecture design development and project delivery.
Finally, the agreement should also detail the respective responsibilities of both parties. This section clarifies who will be responsible for what, helping to ensure that everyone understands their obligations and duties throughout the course of the project. Each party needs to carefully review these terms to avoid misunderstandings or disputes later on.
The Advantages of AIA Agreements
Contract documents published by the AIA have become very common in the construction industry and many design professionals utilize them, particularly those associated with public works contracts. Contract documents published by the AIA have the following benefits for architects/consultants:
Standardization
AIA contract documents are widely used in the building industry. It is important to consider whether the contract documents you use are generally understood and accepted within the industry or a specific market. In the general building industry, there is more familiarity and comfort with AIA contract documents than with other contract documents. These models of AIA contract documents are relatively long and comprehensive. Shorter forms are available, but they are not as widely used, and there may be less comfort with them in the industry.
Risk Management
Contracts may differ from project to project and may also be susceptible to negotiation. The AIA contract documents may subjectively provide more comfort to owners than to architects, but may provide more comfort to architects/consultants than with contract documents prepared by the owner or contractor. Standardized contracts generally make it easier to allocate risk. For example, while the American Institute of Architects (AIA) A201-2017 General Conditions of Contract for Construction contains provisions dealing with damages, it allocates liability in a way that is generally more favorable for design professionals, particularly when compared to the risk allocation in the ConsensusDocs standard AIA forms.
Legal Protection
The AIA contract documents also serve as a study guide for an attorney who may represent an architect/consultant in any litigation or arbitration which may arise, and liability can be anticipated (because all architects/consultants should have adequate professional liability insurance). Experienced construction attorneys should be approximately familiar with contract documents published by the AIA. This background may provide a cost reduction if an attorney understands the risks and rights arising from these AIA contract documents. Further, most contract documents published by the AIA contain dispute resolution clauses, including mediation and arbitration. Dispute resolution clauses may reduce the costs associated with a dispute and reduce uncertainty and the potential for protracted litigation.
Key Issues and Solutions
The use of an AIA Architect Consultant Agreement is an excellent way to, at a minimum, provide a framework for the consulation and work relationship between the Architect and the Consultant. However, it is not uncommon to run into issues while either filling out the agreement or through work performed under the agreement. Below, we address some common issues that we have run into involving this agreement.
One challenge we have experienced involves the issue of consultants or contractors not desiring to be bound to the Architect’s insurance requirements under the agreement. In addressing this concern, we regularly specify that the insurance requirements only apply to the portion of work performed by that specific consultant or contractor, so as to not hold them responsible for work done by others on the entire project.
Another challenge we often face involves the parties not understanding the method to compensation and the different opportunities for compensation during the project, considering that there are separate provisions dealing with "Schematic Design," "Design Development," "Construction Documents," "Bidding," and "Construction Administration." The Architect may feel that he is trying to coordinate with numerous consultants who are each performing under their own separate contracts with the same goal of completing the project; however, the various consultants may lack this same vision and fail to understand how their work fits along with and contributes to the same goal. The solution to this challenge comes in the form of communication, regular meetings, an open door policy and the like, all designed to ensure that everyone is on the same page regarding both the scope of work and compensation available for the work performed during the various phases.
A third challenge involves the issue of scheduling off site visits for work performed by the consultant. This issue occurs when the project involves a significant amount of travel by the consultant to perform his work. In dealing with this issue, we have had an AIA-style "addendum" to the agreement specifically address the time spent off site. The addendum provides that the Consultant will be compensated for these time and travel expenses and lays out the method of compensation. We have also provided for additional per diem compensation for any further requirements from the Architect in the form of "dinner meetings" or similar requirements. An optional solution to consider involves the use of video conferencing to decide issues without the need to travel to and from the site.
How to Tailor an AIA Agreement
AIA contracts, like virtually all contracts, are negotiated agreements of mutual intent. That means that each side has some level of power in the negotiation of what goes into the contract. The Architect Consultant Agreement is a good example of the back and forth that occurs in negotiating an AIA contract. The process does not have to be adversarial or contentious. In fact, we think that good negotiation actually fosters a better relationship between the parties moving forward into the project.
The Artisan/Cambridge group utilizes both the new AIA AIA C401 Standard Form of Agreement Between Architect and Consultant and the pre-2001 AIA B141 Standard Form of Agreement Between Architect and Consultant on many projects. The AIA C401 is more comprehensive and is now acceptable for many types of projects. It too has evolved over the years and gets better with each new iteration. In particular , the Insurance and Indemnification provisions are sufficiently detailed so as to avoid ambiguities that can lead to misunderstandings and can be a source of contention later in the project.
Using the AIA C401 and the AIA B141 requires careful review of their longer lists of General Conditions. Standard Contract Administration interpretations have also been developed over the years to help with the interpretation of the Standard Forms.
Our experience has been that Client’s want to amend and customize the provisions of the AIA Architect Consultant Agreement. Like any other contract, the closer it fits the project, the better it works. Negotiation of Date of Service, Additional Services, Limitations, Owner’s responsibilities, and even Schedule are all commonly discussed during negotiations. As with all things with Contractors, the process should not be adversarial. The value of the Architectural Services Consultant Agreement is that it allows for some level of negotiation so that the deal between Client’s and their Architect is documented and does not later lead to misunderstandings.
Applicable Laws and Diversions
Law firms developing, managing, and closing a construction project through the AIA Architect Consultant Agreement – B139, for example – must comply with a variety of federal, state, and local laws and regulations. A number of laws and regulations may apply, including those regarding workplace safety, public and employee health, fair business practices, nondiscrimination, workplace harassment prevention, conflict of interest, commercial bribery, antitrust and false claims—your legal partner can help keep track of all the relevant laws and regulations through the lifecycle of the AIA Architect Consultant Agreement.
Laws and regulations that may apply to the AIA Architect Consultant Agreement include:
Civil rights and anti-discrimination laws
Workplace safety and health regulations
Fair labor standards
Unemployment insurance
Workers’ compensation insurance
Social security taxes
Federal and state environmental statutes
Environmental impact reports
Local zoning ordinances and building codes
Liability and indemnification
Intellectual property, trade secrets and proprietary information
Infringement and antitrust
Confidentiality and security
Data protection, privacy and PCI compliance
Email communications and advertising
Electronic services and the Internet
Trade regulations and fair trade practices
Bribery and conflict of interests
Health care and medical record privacy
Record keeping and access to records
Registering new business locations
Occupational Licensing and bonding
Selecting the Right AIA Agreement
For smaller projects, many owners and architects find that the AIA B104-2007, Standard Abbreviated form of Architect’s Services Contract, for use with Project of Limited Scope agreement is right for them. This simplified standard form is appropriate for smaller projects and comes in a shortened version that can be used for a limited scope of service.
The AIA provides many different standard Architect Consultant Agreement forms that reflect the diversity of project types and forms of delivery. The AIA Doc. C401-2007, Standard Form of Agreement Between Architect and Consultant, was designed to meet the needs of all project types. It is a "general" form of Architect Consultant Agreement that can be used for any type of project or any size of project. That is great if you don’t know exactly what kind of project you are working on or if it is a new project on which you have not yet begun working. A slightly smaller version is AIA Doc. C402-2011, which is the Standard Form of Architect’s/Engineer’s Joint Venture Agreement. The AIA Doc. C401-2007, Standard Form of Agreement Between Architect and Consultant, can be used for both large and small projects, and for projects where consultants have unique contractual relationships with the architect. But how do I know which form to use?
The primary decision making factor in determining what form of Architect Consultant Agreement to use is the size and/or scope of the project . The more complex the project, the more detail required in the form of the agreement. Generally larger projects require more agreement detail, while smaller projects require less detail. In addition, the size of the parties involved impacts the amount of detail required in the contract. When larger, more established firms are involved, less detail is required in the contract. An example of this can be seen in the small form versus large form Architect Consultant Agreements. The small form is 20 pages long while the larger form is 90 pages long. Therefore, as projects increase in size and the parties familiarity with each other increases, less detail is required in the agreement. Conversely, if the parties are unfamiliar with each other, required contract detail increases.
The decision making factors when determining the proper form of Architect Consultant Agreement to use include: Because, in general, larger projects require more detail in the agreement and smaller projects require less detail in the agreement, there tends to be a "sweet spot" for the projects where the project size matches the correct size of Architect Consultant Agreement. A project where the project details fit into the "sweet spot" can prevent unforeseen problems down the road.