October 5, 2015
Michael B. Bomba
Surging in popularity in recent years, design-build is now the fastest-growing delivery method in the design and construction industry. According to the Design-Build Institute of America (DBIA), roughly 40 percent of commercial projects in the country rely on it. Proponents argue design-build is a streamlined, flexible approach that helps prevent delays and reduce project costs.
In 2014, the American Institute of Architects (AIA) released updated versions of its commercial design-build family of documents, which include the following six agreements:
In June 2015, CSI announced its endorsement of these documents. The decision was made after a thorough review by the CSI Technical Committee, which analyzed the AIA contracts for consistency, good industry practice, and alignment with CSI core technical values.
“This endorsement is a testament to the quality and importance of our design-build documents, and reinforces AIA’s leadership position in the industry with respect to this growing delivery method,” said Deborah DeBernard, AIA, NCARB, Architect AIBC, LEED AP, the institute’s senior vice president and general manager of Global Innovation and AIA Contract Documents.
In the design-build project delivery method, the owner enters into a single contract with a design-builder, who may be a design-build entity, an architect, a contractor, or a real-estate developer, that is responsible for both the design and construction of the project. The design-builder will then contract directly with the architect and contractor as necessary for the project. This differs from the traditional design-bid-build approach, where the owner directly retains the architect and contractor under separate agreements.
The central document in the AIA’s design-build family is A141-2014, Standard Form of Agreement Between Owner and Design-Builder. The updated 2014 version includes the incorporation of general conditions within the body of the agreement. The document consists of the agreement and three important exhibits.
Exhibit A is the Design-Build Amendment that memorializes the project design and contract sum. Execution of the Design-Build Amendment is the culmination of an iterative process resulting in a preliminary design and a proposal that includes the contract sum and time based on the initial owner’s criteria provided to the design-builder. When the proposal is agreed upon, the owner and design-builder execute the Design-Build Amendment.
Exhibit B is an insurance and bond exhibit. Insurance requirements include professional liability and pollution insurance, and the exhibit also lists the types and amounts of performance and payment bonds.
Exhibit C is a sustainable project exhibit used to identify the scope of the design-builder’s sustainability services, if any, and to establish a process to determine the owner’s sustainable objective for the project.
The format of AIA A142-2014, Standard Form of Agreement Between Design-Builder and Contractor, is similar to the 2004 edition, and includes exhibits for the terms and conditions (Exhibit A), insurance and bond provisions (Exhibit B), preconstruction services (Exhibit C), and determination of the cost of work (Exhibit D). AIA A441-2014, Standard Form of Agreement Between Contractor and Subcontractor for a Design-Build Project, incorporates by reference the terms and conditions of the A142-2014 and allows for the possibility of subcontractors providing professional services.
AIA B143-2014, Standard Form of Agreement Between Design-Builder and Architect, does not include a fixed scope of architect’s services, but rather features an extensive menu of services from which the design-builder and architect may select. The agreement can be used by the design-build entity to enter into an agreement with an architect who will perform all of the architectural services on a project, or, if the design-build entity will perform some of the architectural services, it can be used to contract with additional architects who will provide portions of the architectural services.
AIA C141-2014, Standard Form of Agreement Between Owner and Consultant for a Design-Build Project, is a standard form for the project-related services an owner may require from a consultant. These may include programming and planning, budgeting and cost estimating, project criteria development services, the development of bridging documents, or construction contract administration services.
AIA C441-2014, Standard Form of Agreement Between Architect and Consultant for a Design-Build Project, establishes the contractual relationship between the architect and a consultant providing services to the architect. It assumes and incorporates by reference a preexisting prime agreement between the design-builder and architect and was written to ensure consistency with AIA Document B143-2014.
All the new design-build documents address the use of building information modeling (BIM). The documents specify the parties will use AIA Document E203-2013, Building Information Modeling and Digital Data Exhibit, to establish protocols for the development, use, transmission, and exchange of digital data and building information modeling.
In addition to the AIA’s six commercial design-build agreements, three forms have also been customized for use in design-build projects. These include:
All of the design-build documents are available for purchase in the latest version of the AIA Contract Documents desktop software, and online through AIA Documents-on-Demand, and AIA Documents-on-Demand Plus.
Michael B. Bomba, Esq., is a director and counsel on the AIA Contract Documents team at the American Institute of Architects, Washington, DC. Bomba works actively in the creation and revision of AIA Contract Documents and provides assistance to users of AIA documents. He worked with the AIA Documents Committee on the creation of the AIA’s updated Design-Build Documents, and obtained his J.D. from the American University Washington College of Law in 2002. Prior to joining the AIA, Bomba worked at a private law firm in Washington, DC, representing design professionals in corporate and litigation matters. He is a member of the bar in both the State of Maryland and the District of Columbia. He can be reached via e-mail at email@example.com.
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