Contract documents

February 24, 2022

Finding an Architect

You are ready to delve into your construction project. How do you find an architect? Depending on the type of project you have, it is useful to ask for referrals from people you know who retained an architect for a similar type of project. If it is a kitchen remodel, ask family, friends, or neighbors who may have had their kitchen remodeled. A neighborhood listserv can also be a good place to ask for recommendations. If you are developing a commercial space, you might be able to obtain referrals from business associates. You may need to find an architect with special qualifications. If your project involves a historic building, you would want an architect that has experience with historic preservation. The American Institute of Architects (AIA) has component chapters throughout the country. You might contact your local AIA component to ask for referrals. You can attend home shows and other types of construction-related events. Most architecture firms have websites with portfolios of project photos that you can view.

Once you have selected a few architects that you want to interview, it’s important for you to have enough information about your project to give the architect an idea of the size and scope of the project, and any specific requirements that are important to you. If the project is a remodel of an existing space, do you want the space to be reconfigured, maybe by removing one or more walls, or do you want to work with the existing space? If it’s new construction, do you want one level or more than one? Do you want design for aging in place or for sustainability, which might require special materials or systems to be included? Do you have a site or do you need assistance with site selection? This type of information is important for the architect to be able to make a preliminary estimate of what the work will involve. You will also need a project budget and an idea of how long you want the project to take. The architect can let you know whether your budget seems sufficient and whether your time frame is realistic.

Your architect is a critical party to the success of the project, and you can expect to be in regular communication with the architect throughout both the design and construction phases. Therefore, you want to select an architect who is not only knowledgeable and experienced in your type of project, but also someone that you think you will feel comfortable working with and with whom you can communicate well.

Architect’s Standard of Care

It’s important to remember that your architect is a professional and is held to a similar performance standard as other professionals in fields involving judgment, such as doctors and attorneys. The AIA owner/architect agreements include the following standard of care for architects:

The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances.

This contractual standard of care is generally the same as the common law standard of care in most jurisdictions. Note that this standard does not require perfection.  Accordingly, an architect typically does not provide a guarantee or warranty of outcome. Changes are common in the design or construction phases because of items such as unforeseen conditions, or material costs or availability. These are things the architect cannot predict and plan for in advance, and they could impact the cost or project schedule. The architect is not liable for such changes if the architect’s performance has met the standard of care. Most architects carry professional liability insurance (also known as errors and omissions insurance) to address claims that they may not have met the standard of care.

Owner Information

When you have selected the architect and you are ready to sign an owner/architect agreement, you will need to provide the architect with more detailed information than at your initial meeting. The architect will base its scope of services and compensation on information provided by the owner. Critical information includes the basics of what you want to achieve (the “program”); physical characteristics of the project, such as legal site description and surveys; your budget and construction milestone dates (eg commencement and completion); your representative (the person who will make decisions that the architect can rely on); and any special project requirements. For a residential construction project, you will need to provide information about any restrictive covenants, easements, and Homeowners Association requirements. If you provide inaccurate or incomplete information, or if you make changes to items like your program or budget, the architect will be entitled to charge you for additional services necessitated by the changes or faulty information.

Architect’s Scope of Services

The architect’s basic services include development of the design and construction documents. This is usually done in several stages, depending on the complexity of the project. You will review the documents with the architect and approve them as they are further developed until the design is complete and the architect prepares detailed construction documents for the contractor to use. The architect will also prepare specifications that identify major materials and systems and establish, in general, their quality levels. The architect will also provide a cost estimate for the project.

The architect will usually want to be involved in the construction phase of the project to be sure it is built in conformity with the construction documents and for risk management purposes. For these reasons, it is also advantageous to the owner for the architect provide construction phase oversight. The owner/architect agreement will provide the architect’s services in the construction phase which, as in the design phase, will vary depending on the complexity of the project. The architect often assists the owner with obtaining a contractor. In the AIA owner/architect agreement B101-2017, the architect will review bids from contractors, make recommendations, and assist with preparing the owner/contractor agreement. The architect reviews shop drawings, answers contractor questions, and performs site inspections to make sure that the construction complies with the requirements of the drawings. The architect will also review the contractor’s payment requests to be sure they are accurate, as well as approving contractor’s requests for changes in the work and any adjustments to time or cost.  The architect will determine when the project is substantially complete, assist with development of a “punch list” of items that need to be completed for the project to be finished, and will perform a final inspection to verify that the punch list items have been done and the project is complete. If the architect is providing these construction phase services, the owner and contractor would communicate through the architect.

Consultants

In addition to agreeing on the scope of the architect’s basic services, the owner and architect should discuss whether any consultants are required for the project. The architect will help with determining which consultants are needed. If so, the contract should specify which party will provide each consultant.  Is a geotechnical report or a survey required? If so, who will retain the geotechnical engineer or surveyor? Similarly for consultants such as mechanical or electrical engineers.  It is important to agree on these things in advance for coordination of services, cost, and scheduling purposes.

Architect’s Fee

The architect’s fee will be based upon the agreed-upon scope of basic services in the owner/architect agreement. If you want the architect to provide services that are not included in the basic services, such as interior design or landscape design, those services should be included in the owner/architect agreement when it is negotiated so that those services can be included in architect’s fee. Although you could decide to include such services at a later time, it could be more costly and add time to the project schedule.

It is important to be aware that the construction process often necessitates changes that cannot be known in advance, such as revisions to drawings needed because of a building code change, preparation of change orders, or evaluating contractor substitution requests. The architect will be entitled to charge an additional fee for these types of services that cannot be assessed in advance and included in the fee for basic services.

There are various methods that an architect might use to determine compensation. The contract could be for a fixed price or based on hourly rates. You may have to pay for certain reimbursable items. The owner/architect agreement should provide a process for billing and payment.

Conclusion

As you can see, communication is essential to a successful working relationship with your architect. Conflicts cause delays and financial cost. Providing complete and accurate information, a careful crafting of the architect’s scope of services, and management of expectations will go a long way to achieving a successful project.

Our next article will discuss working with a contractor and, like this article, will provide some of the basics to know about how to have a good working relationship with your contractor leading to a successful project.

Susan Van Bell, Esq. was Senior Director of Content for AIA Contract Documents for over ten years. She is currently a consultant.

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.