2007 AIA A201 General Conditions of the Contract for Construction: Proceed with Caution

On November 8, 2007, The American Institute of Architects ("AIA"), released its decennial revisions of the AIA family of documents. For those who may be thinking they will simply insert these brand new documents in future contract negotiations, you may do so at your peril. While many of the changes reflect changes parties have been making for years to the standard form A201, others require a cautionary approach in determining how these changes will impact your organization and the way that it administers its Contract Documents.

For example, the new A201 begins by adding additional detail to the Architect's copyrights or Instruments of Service, which are now defined. Instruments of Service are now defined in new Section 1.1.8 as:

representations, in any medium of expression now known or later developed, of
the tangible creative work performed by the Architect and the Architect's
consultants under their respective professional services agreements.
Instruments of Service may include, without limitation, studies, surveys,
models, sketches, drawings, specifications, and other similar materials.

With respect to the Architect and the Architect's consultant's, the new 2007 A201 also further defines the rights afforded to each of the Architect and its consultant's in Section 1.5.1 and prohibits "[t]he Contractor, Subcontractors, Sub-subcontractors, and material or equipment suppliers" from using the Instruments of Service "on other projects or for additions to this Project outside the scope of Work without the specific written consent of the Owner, Architect and the Architect's consultants."

In the Commentary to the 2007 A201 changes, the drafters indicate that the new language serves to protect "the interests of the owner, architect and architect's consultants, and also serves to protect the public from harm that may result from their misapplication." While no additional insight is provided as to the reasoning for the change, or how specifically the owner, for example, stands to benefit from the prohibition, the new language appears to beg more questions than it answers. While the public policy and safety arguments afford the drafters a convenient explanation, as a practical matter, the new language will likely cause more problems for owners and contractors than it will resolve. For institutional owners who seek to construct an addition on to their existing structure, for example, what happens if the original architect of record or its consultants cannot be located years after an original structure was designed? Does a new owner of the building step into the shoes of the Owner under the Contract who constructed the building such that the new owner may seek and obtain permission to use the drawings? What royalties will an owner or contractor have to pay as part of the Contract Sum to use the Instruments of Service? Can the Owner use the drawings to coordinate with the drawings of a new architect in the design of an addition?

These are but a few of the questions that emerge when reviewing just these few Sections of the new 2007 A201. The lesson in all of this? As parties begin to move towards implementation of the new Contract Documents, they should invest time upfront to understand how the changes made to the 2007 AIA Contract Documents will impact how they enter into and administer the Contract Documents on future projects. Many of the new changes will have to be further revised (or deleted) and companies' internal policies will also have to be changed to be sure that the new changes to the AIA Contract Documents reflect each company's daily contract administration practices.

We will continue to discuss the changes in the AIA documents in future blogs. (This entry published by Culley Carson, a member of Womble Carlyle's construction law practice group.)