By Marika Snider, PhD, AIA, Principal Architect, Snider Architecture, LLC, Michael Bell, FAIA, Esq., President, Bell Architecture APC and Leonard Kady, FAIA, Principal, Leonard Kady Architecture + Design
The new AIA Custom Residential Documents streamline the contractual process for architects by tailoring them for the distinctive requirements of the custom residential construction market. The suite includes A110-2021, Standard Form of Agreement Between Owner and Contractor for a Custom Residential Project, and B110-2021, Standard Form of Agreement Between Owner and Architect for a Custom Residential Project. These are the first documents published by the AIA specifically developed for use in custom residential design. They can assist the architect in educating the client and setting expectations about the construction process.
Previously, architects and contractors have successfully used other AIA agreements for their custom residential projects. Small differences in custom residential projects, however, meant that some content was not relevant and could be ignored while other information needed to be added. The new documents have already been vetted for custom residential and will need fewer edits.
The A110-2021 was developed from the A104-2017, Standard Abbreviated Form of Agreement Between Owner and Contractor. The B110 and A110 coordinate with one another in the same way the B101 is coordinated with the A201 General Conditions and the A101, A102, or A103.
However, like the A104, the A110 is a stand-alone agreement that includes its own general conditions. This simplifies the process by providing a single document rather than separate general conditions. Both allow for three types of compensation: Stipulated Sum, Cost of the Work Plus a Fee, and Cost of the Work Plus a Fee with GMP. When using a Cost-Plus compensation model, both agreements require the use of Exhibit A, Determination of the Cost of the Work. The A110 follows the A104 closely with only a few edits to reflect the custom residential market. One of the edits is to add the requirement for the contractor to provide a submittal schedule.
Many jurisdictions have laws that are unique to residential construction, often to protect the homeowner. The new documents include prompts to remind architects and contractors to include these provisions. Some examples include Consumer Protection warranties and related notices, lien laws, and licensing requirements. There is no Initial Decision Maker because it is unlikely one would be required in custom residential projects. Liquidated Damages provisions have also been removed because of the challenges with administering such clauses in residential projects. Parties can always add Liquidated Damages clauses to the agreement if applicable to their project. The agreements also reduce the requirements for digital data protocols and transmission because residential projects are generally less complicated than commercial projects with regards to digital data.
The B110 was developed from the B101-2017, Standard Form of Agreement Between Owner and Architect. Like the B101, the B110 offers a variety of compensation methods. In both agreements, the architect still provides Basic, Supplemental, and Additional Services. Basic Services comprise the same 5 phases of service: schematic design, design development, construction documents, bidding and negotiation, and construction administration. Unlike the B101, the B110 does not include structural, mechanical, and electrical engineering services as part of Basic Services. Unless listed as a Supplemental Service, the B110 presumes that MEP engineering services will be rendered through a design-build process, such as when the contractor lays out the HVAC system. Supplemental Services are those services which are beyond those covered in Basic Services but which the architect will provide. This could include Programming, Hardscape Design, Interior Design, or Audiovisual/Security/Low-voltage System design. From the list of Supplemental Services, which has been edited to reflect the most common services for custom residential construction, the architect selects which services will be provided by the owner or the architect.
Unlike Supplemental Services, Additional Services are unknown at the time of the contract and arise as the project progresses as in the B101 and B110. Additional Services arise additional work if the owner materially changes the size, quality or complexity of the project, or the architect is required to prepare for and present at a dispute resolution hearing where the architect is not a party to the hearing.
The Bidding and Negotiation Phase has been clarified to include one concurrent effort. The architect will assist in one round of bidding and negotiating under Basic Services. If the owner wants to send the project out to bid a second time hoping to get lower fees, that would be compensated as Additional Services. The B110 also simplifies the record keeping requirements for the Construction Administration phase. In addition, the B110 clarifies that the owner will retain one single contractor to perform the work. If the owner elects to hire subcontractors directly and act as a general contractor, the architect could be entitled to additional compensation because of the additional work required to coordinate such a project. The owner is also required to provide the architect with a copy of the executed agreement between the owner and contractor.
The Sustainable Objective is not located in the main body of the agreement but can be included using the E204-2017, Sustainable Projects Exhibit, to allow owners to flesh out sustainability goals if desired. However, the architect is still required to consider sustainable design alternatives in the Schematic Design Phase.
Another difference is that the owner is responsible to provide information specific to their project such as property or site covenants, conditions, restrictions, and homeowners’ association requirements.
As in B101, Mediation is required prior to proceeding to binding dispute resolution. The B110 includes a check box to select the type of dispute resolution to be used if mediation fails. If no method is selected, the dispute will be resolved by litigation in a court of competent jurisdiction.
The A110 and B110 were vetted through the same rigorous process that other agreements receive, which includes writing by a small team of residential architects with the AIA legal team and insurance advisors. The documents were evaluated by industry professionals including owners, contractors, and architects. They were edited again by the small task group to incorporate the feedback and the documents were reviewed by the entire Contract Documents Committee before acceptance. The goal of this process is to create documents which are fair and balanced for all parties involved and which place the risk with the party most able to control that risk.
Any architect, designer, or home builder working in the custom residential market is encouraged to visit the AIA Contract Documents’ single family residential page where they can learn more about these documents.
AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors.