2022 welcomes two new form agreements from the American Institute of Architects (“AIA”) for owners utilizing two architects to complete design services on a project: “AIA Document B111–2022 Standard Form of Agreement Between Owner and Design Architect,” and “AIA Document B112–2022 Standard Form of Agreement Between Owner and Architect of Record.” Borne out of the popular “B103–2017 Standard Form of Agreement Between Owner and Architect for a Complex Project,” these new form agreements more clearly delineate the roles and responsibilities between two architects separately responsible for the design development and construction phases of a project, respectively.
The AIA recommends utilizing B103 agreements on “large or complex” construction projects, in which the project owner retains its own scheduling and cost consultants, while the architect renders services in five, discrete phases: schematic design; design development; construction documents; procurement; and construction. Given recent increases in the desire to use multiple architects for projects of such magnitude, however, the AIA now offers forms B111 and B112 to delineate between a “Design Architect” (i.e., the architect responsible for developing a project’s design intent, schematic design, and design development) and an “Architect of Record” (i.e., the architect responsible for developing construction documents and overseeing construction efforts). A majority of the owner’s obligations in these agreements remain consistent with form B103.
Forms B111 and B112 may be used in either concurrent or consecutive service arrangements. In concurrent service arrangements, each architect simultaneously renders services throughout the design process and into construction (with the Architect of Record steadily taking over a larger role as design progresses into construction). In consecutive service arrangements, the Design Architect renders services through the completion of design development, and then submits a “Transfer Package” to the Architect of Record, who relies upon this Package to develop construction documents and oversee construction efforts. The AIA offers scope of service exhibits for each arrangement: the “AIA Document E205–2022 Architects’ Scope and Responsibility Matrix” should be utilized in concurrent service arrangements, as it allows the owner and its architects to check-off in the matrix which architect will undertake each discrete task on the project, from schematic design all the way through to project close out. For consecutive service arrangements, the AIA recommends incorporating the accompanying “B111–2022, Exhibit A, Design Architect Services” and “B112–2022, Exhibit A, Architect of Record Services” into each architect’s agreement, which contemplates a clear transfer of responsibility at the end of design development and beginning of construction document phase.
Both B111 and B112 require the architects to adhere to the same standard of care utilized in all AIA Owner-Architect agreements (although, notably, the duty only extends to the owner, and not to each architect). Additionally, in an effort to protect each entity’s commercial interests, each form provides each architect equal rights to use the completed project for promotional purposes, so long as the architects clearly identify one another in their promotional materials as the “Design Architect” and “Architect of Record.” Each architect also has ownership rights over their own deliverables (i.e., “Instruments of Service”), with limited licenses granted to the owner for the sole purpose of advancing the project to completion.
But given their differing scopes of service, there are certain obligations and conditions unique to each form agreement. Most notably, each architect has the right to rely on the other’s Instruments of Service, only to the extent reasonable for a given phase of design—for example, under form B112, an Architect of Record may not claim it relied upon the Design Architect’s schematic design when faced with a detailing conflict during construction, as the schematic design would not typically include such level of detail. Similarly, the Design Architect’s Instruments of Service shall present the design intent and scope of the project, while the Architect of Record’s Instruments of Service shall ensure compliance with all applicable codes, laws, and regulations. The two form agreements also expressly state that the Architect of Record shall be responsible for retaining engineering subconsultants, rather than the Design Architect.
The dual-prime contract scenario also places unique obligations on the owner. Generally speaking, the owner maintains nearly identical relationships with each architect, and thus acts within these form agreements as the conduit through which information should be funneled to one another. This includes responsibility for overseeing coordination efforts between the architects, as well as ensuring communications reach each architect, should the other identify any errors, defects, or inconsistencies in their respective Instruments of Service. But even though the owner acts as a hinge between both architects, it is important to remember that the owner separately enters into form B111 and B112, and thus its obligations and rights separately flow down to each architect.
Inevitably, this contracting arrangement could invite issues with respect to scope gaps and coordination of the architects’ separate Instruments of Service. Whether it be a concurrent or consecutive service arrangement, the two architects (and, particularly, the owner) will most certainly require meetings—both prior to and during the project—to ensure that each and every obligation is assigned to one entity or the other, in order to avoid disputes down the road. The form agreements do build in some measures for ensuring a smooth transition/delineation of scope—for example, they require the architects to meet and develop protocols for exchange of building information modeling (“BIM”) and other electronic deliverables at the outset of the project. Additionally, in consecutive service arrangements, the architects are required to meet and confer once the Architect of Record receives and reviews the Design Architect’s “Transfer Package,” in order to resolve any questions/concerns it may have before beginning the construction document phase.
Despite these built-in efforts to ensure smooth transitions of scope, which is further aided by the AIA’s form Exhibit A and the Scope and Responsibility Matrix, legal issues can (and will) certainly arise between the two architects. Architects and lawyers alike should be wary of the fact that reasonable minds may differ on the implementation of a design, and the meet and confer that occurs when the Design Architect hands the “Transfer Package” over to the Architect of Record could lead to bona fide disputes over the design intent of a project. There may also be situations in which the owner is required to increase a construction cost budget due to design revisions, which could lead to each architect pointing the finger at the other, disclaiming responsibility for such scope increase. Any scope gap will also lead to a question as to which architect is entitled to the fees that arise from the additional services required. These potential issues could be further frustrated, from a legal standpoint, by the fact that the architects do not possess a contractual relationship with one another—as stated before, the architects’ obligations only flow upward to the owner, and not laterally to one another. In that regard, the owner will undoubtedly become essential to resolving any dispute that arises between the architects.
The AIA foresees this problem, and recommends that owners and architects consider amending the dispute resolution clauses within each form agreement to include a preliminary, “meet and confer” process, whereby the two architects present their differing positions to one another, and to the owner, who serves as the independent decision maker. This allows the owner to remain at arm’s length from a dispute between the architects, while also adhering to its obligations within both B111 and B112 to oversee coordination and communications between the entities. Only after this meet and confer process fails, should the parties proceed to mediation.
Of course, given the infancy of these form agreements, there is (unsurprisingly) no pertinent case law addressing how courts analyze B111 and B112. This will be an interesting development in the ever-growing case law on AIA contract interpretation, especially considering it could invite an increase in designer vs. designer disputes, rather than the age-old designer vs. owner and/or contractor cases we so often see. However, none of these issues should be commonplace if owners and architects alike ensure that a dual-prime contract arrangement like this begins with a clear and delineated scope of service for each architect, with all clarifications, exceptions, supplemental services, and fee arrangements laid out before design efforts begin. Absent this upfront effort to set the record straight, the mutually beneficial, dual-architect arrangement on large, complex construction projects may devolve into disputes over which entity owns which portions of work on a given project, or which entity is responsible if an error or omission arises in the design documents.