LAW
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:
- AIA Document A141-2014, Standard Form of Agreement Between Owner and Design-Builder;
- AIA Document A142-2014, Standard Form of Agreement Between Design-Builder and Contractor;
- AIA Document A441-2014, Standard Form of Agreement Between Contractor and Subcontractor;
- AIA Document B143-2014, Standard Form of Agreement Between Design-Builder and Architect;
- AIA Document C141-2014, Standard Form of Agreement Between Owner and Consultant for a Design-Build Project; and
- AIA Document C441-2014, Standard Form of Agreement Between Architect and Consultant for a Design-Build Project.
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.
Architects – note that design-build sticks your neck a bit further out into the “design and construct” territory of the ADA. Not insurmountable, but tread with care
I am both an architect and a General Contractor. I have been an architect for about 38 years, and a GC for about 10. I have built a lot of my designs. I use many of the AIA documents. I do not like the AIA DB contracts for the following reasons: 1) There are no real qualification requirements for DB entity. This leaves the architect in a vulnerable position. If the architect knows the DB group well, it is lessens that vulnerability, but it does not remove it. 2) I do not like the architect to have to take such a back seat position with mostly very little control of the process, budget, communication or the priorities of the decision making. Sometimes that is not the case, but mostly as practiced it is. 3) I think architects should work hard to obtain their own clients, and not have another option to not have a direct client relationship. 4) Most executed DB contracts I have seen have been contractor led with the architects and the design following a schedule and a budget. 5)The word architect means “master builder”, and it use to epitomize the skill sets of the architect. Today architects have become to detached from construction, and have given up too much professional real estate to others. I see this as another loss of real estate professionally, by adding this additional unregulated entity into the project mix – the “Design Builder”
We design/build, but not as discussed in the AIA documents with a third party , but rather we do both activities. A lot of insurance carriers for architects do not want then to enter DB contracts because of the added risk.