Werner Sabo is a partner at the construction law firm of Sabo & Zahn in Chicago. He is also a licensed architect, having practiced architecture for a number of years prior to establishing his law practice in 1981. He is a member of the AIA and CSI, has been an officer and director of the Chicago Chapter AIA, President of the Chicago Chapter, Construction Specifications Institute, and writes a monthly construction law column for The Construction Specifier. He is also a founding member of the Society of Illinois Construction Attorneys. In 1997, the AIA elected him to the College of Fellows. His book, Legal Guide to AIA Documents, published by Aspen Publishing, is in its fourth edition. Mr. Sabo is also a construction arbitrator and mediator for the American Arbitration Association and is admitted to the federal trial bar.
James K. Zahn is a licensed architect and attorney in the State of Illinois. He is a partner in the law firm of Sabo & Zahn, concentrating in construction law and representing owners, contractors, architects, developers, engineers and other parties in the construction process. He received a Bachelor of Architecture from the University of Illinois and his JD from Chicago-Kent College of Law. Mr. Zahn is a member of the American, Illinois and Chicago bar associations, American Institute of Architects, Association of Licensed Architects, Construction Specifications Institute and has NCARB Certification. He was a past president of the Illinois Council of the American Institute of Architects and is a Fellow of both the American Institute of Architects and the Association of Licensed Architects. He is currently a resource member of the AIA National Documents Committee.
Shawn E. Goodman is a partner with Sabo & Zahn. He concentrates in litigation of all types. A graduate of the Northwestern University School of Law, he was admitted to the bar 1993. Since that time, he has practiced before local and outlying circuit courts, U.S. District Court, and various administrative tribunals. He has acted on behalf of a variety of clients including small to mid-sized businesses and individuals. He has handled all facets of litigation from pleading to motion practice to discovery to trial. The cases with which he has been involved are varied and wide-ranging and include personal injury, breach of contract, criminal defense, commercial disputes, and consumer fraud. He has represented both plaintiffs and defendants and has practiced before juries as well as judges. Mr. Goodman has also worked on appeals and has assisted in the drafting of appellate briefs.
The American Institute of Architects released its long-awaited revised Design-Build documents in late March, 2005. These constitute a major revision to the prior design-build documents that did not receive much use in the industry. This article will give a brief overview of these new documents.
Unlike the prior AIA documents which had a two-part format for the design-build process, these documents have one series of agreements among the various parties. The format contemplates a Design-Build entity that contracts directly with an Owner (see fig. 1). The Design-Builder has separate contracts with the Architect and with the Contractor. Another document is for a contract between the owner and a consultant, presumably an architect, who will draft the project criteria. This project criteria is similar to a program, but could be much more involved, and may include very specific requirements for the Design-Builder to meet.
These documents allow for a great deal of flexibility. For example, Exhibit B to Document A142, the Design/Builder - Contractor Agreement, discusses preconstruction services to be provided by the Contractor. There are essentially two blank spaces for the parties to identify what, if any, such services will be provided, and how much the Contractor will be paid for these services. Other exhibits to the four main documents have similar flexibility. Either the contractor or the architect can take the lead position with these documents, although in most cases, a separate legal entity will occupy the position of "Design-Builder."
People familiar with AIA documents will quickly recognize 90% of the language used, as it comes primarily from the most recent A201 and B141 documents. This will help when one realizes that these documents form a stack at least an inch thick! For those not familiar with AIA documents, these documents and exhibits will present a daunting amount of paper.
There are a number of interesting provisions in these documents. For the first time, arbitration is an optional provision, as opposed to being an integral part of the dispute resolution scheme of the documents. With prior AIA documents you had to make a conscious determination to remove arbitration from the documents if you wanted to avoid arbitration. Now, the opposite is true: you have to indicate that you want to be bound by arbitration. If you fail to mark the proper box on these documents, then the default of litigation is utilized for future disputes in the place of arbitration.
In the traditional method of construction, the architect provides the owner with a check and balance against the contractor. Prior AIA documents had the architect as a "neutral" who initially tries to resolve disputes between the owner and contractor. Here, the architect is a consultant to the same "team" that includes the contractor. The owner thus has no such protection. As a way to assist the owner, these documents allow for the assignment of a "neutral" who is someone other than the project architect.
For these design-build documents, the AIA has also used some new terms. For instance, the old forms used the term "Contract Documents" while the Owner - Design/Builder Agreement (A141) replaces that term with "Design-Build Documents." The "Contract Documents" term remains in the A142. The term "General Conditions" is replaced with "Terms and Conditions," which are exhibits to two of the forms.
These are the documents and their exhibits:
- AIA Document A141 - 2004 – Standard Form of Agreement Between Owner and Design Builder
- AIA Document A141 - 2004 – Exhibit A – Terms and Conditions
- AIA Document A141 - 2004 – Exhibit B – Determination of the Cost of the Work
- AIA Document A141 - 2004 – Exhibit C - Insurance and Bonds
- AIA Document A142 - 2004 - Standard Form of Agreement Between Design Builder and Contractor
- AIA Document A142 - 2004 - Exhibit A – Terms and Conditions
- AIA Document A142 - 2004 - Exhibit B – Preconstruction Services
- AIA Document A142 - 2004 - Exhibit C – Contractor’s Scope of Work
- AIA Document A142 - 2004 - Exhibit D – Determination of the Cost of the Work
- AIA Document A142 - 2004 - Exhibit E – Insurance and Bonds
- AIA Document B142 - 2004 – Standard Form of Agreement between Owner and Consultant
- AIA Document B142 - 2004 – Exhibit A – Initial Information
- AIA Document B142 - 2004 – Exhibit B – Consultant’s Services
- AIA Document B143 - 2004 – Standard Form of Agreement Between Design Builder and Architect
- AIA Document B143 - 2004 – Exhibit A – Initial Information
- AIA Document B143 - 2004 – Exhibit B – Architect’s Services
Initial reviews of these documents have been very positive. It remains to be seen whether the construction industry adopts these documents for widespread use.
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