Building Data Centers: How to use Consultants and Various Delivery Methods for Data Center Projects

By James R. Germano, Esq.

Building data center might be similar to other construction project in many ways, they differ in some critical respects. This is the third part of the three-part article series where we analyze how data center project participants can use AIA Contract Documents to address the specific needs of data center projects.

In this third part of the analysis, you’ll find why consultants play a huge role in data center design and construction projects and the delivery methods that increase the collaborations and set the success of the data center project from the start.

Consultants play a very important role in data center design and construction. For example, due to the HVAC needs of data centers, the MEP consultant can be the most important part of the entire process, and in fact, often leads the effort as the prime consultant. In this regard, parties can use the C401-2017 Architect/Consultant Agreement. As discussed in Part 1: What Owners and Architects Need to Know, the owner may choose to hire a CM or a cost consultant to perform, at a minimum, preconstruction phase cost estimating.

The unique aspects of data center design and construction might also encourage parties to consider using a design-build project delivery method because it potentially allows for better communication and collaboration with the data center’s end user.

Design-build is a process in which the owner contracts directly with one entity to provide both the design and construction of the project. The design-builder may be a design-build entity, an architect, construction contractor, real estate developer, or any person or entity legally permitted to do business as a design-builder in the jurisdiction where the project is located.

Given the complexities of building data centers, the design-builder is typically an experienced construction manager or construction manager/contractor with previous successful data center construction experience. The AIA’s design-build documents are flexible with respect to the type of entity that performs the design-build services. Along with the owner/design-builder agreement (A141-2014), there is a design-builder/contractor agreement (A142-2014) and a design-builder/architect agreement (B143-2014), either of which may be used, depending on what services are performed by the design-builder.

Notably, the design builder, and the architect as a consultant to the design-builder, should carefully evaluate the acceptability and insurability of the warranty and guaranty provisions the owner might include in its agreement with the design-builder and which the design-builder will flow down to the architect in the design-builder/architect agreement.

In addition to design-build, parties might consider structuring their project to include a CM as constructor, where the CM team uses a large amount of design assist. In this regard, parties can use the AIA’s new C403-2021 Standard Form of Agreement Between Client and Consultant for Design Assist Services and C404-2021 Standard Form of Agreement Between Contractor and Consultant for Delegated Design Services.

Design assist describes a form of collaboration where a construction professional provides information to assist a design professional’s design, typically before pricing for the work has been agreed upon or before the work has been awarded. C403 defines design assist services as “all services performed by the Consultant under this Agreement for the purpose of assisting the design professional of record in its obligation to develop the design for the Project.” The scope of a consultant’s design assist services can vary greatly, depending on the expertise of the consultant and needs of the project. Thus, Article 3 of C403 allows the parties to insert a description of the design assist services or identify an exhibit that contains such a description. C403 is suitable for use as a stand-alone agreement, but can also be used as a complimentary document to many owner/contractor or owner/construction manager agreements offered by AIA Contract Documents.

For example, AIA Document A133 is an agreement between an owner and construction manager as constructor that includes numerous preconstruction phase services that are design assist in nature. C403 can be used as a companion document to A133 to flow down these design assist services from the construction manager to subcontractors and material suppliers.

Although the standard language within the AIA Contract Documents provides a fair and balanced starting point for data center projects, parties may wish to modify the language to suit their specific needs. In this regard, they can consult the various guides published by the AIA. Specifically, the parties may wish to consult AIA Document B503-2017 Guide for Amendments to AIA Owner-Architect Agreements and AIA Document A503-2017/2019, Guide for Supplementary Conditions (for A201-2017, 2017 Owner-Contractor and 2019 CMc agreements).

This article is intended 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.