Setting Expectations: How To Contract With Architects For The Construction Phase

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Jan 29, 2024

When working with architects, owners should be aware of the myriad issues that can arise during construction that may call for an architect’s review.  Owners should therefore require contract terms at the outset that establish the scope of the architect’s work during construction to meet owner expectations and assist with successful project completion.  Setting clearly defined roles for the architect from the start of the relationship can result in cost-savings, increased efficiencies, and timely completion of the project.  This article presents methods to guard against cost overruns and project delays during the construction phase through the architect’s design professional contract.

Most of an architect’s work occurs before construction on the project begins.  During construction, however, architects continue to perform tasks and those tasks are often an overlooked portion of the architect agreement.  Such tasks include site visits, quality control to evaluate the contractor’s work and confirm the work meets design intent, communicating with the owner and contractor, reviewing and certifying payment applications, reviewing change order proposals, responding to submittals, handling disputes, and processing closeout of the project.  Owners should check the language of their architect agreement before committing their architect to do construction phase work that may be outside the scope of their engagement or create costly additional services by the architect.  Similarly, when contracting with the architect, owners should identify any work that may not be necessary for the architect to perform during the construction phase.

The Business and Professions Code sets forth specific requirements for contracts with architects.  With some limited exceptions, architect contracts must be in writing, include a written description of the project, and describe the procedure that the architect and the client will use to accommodate additional services and contract changes, including changes in project scope, description of services, or in compensation and method of payment (Bus. & Prof. Code, Section 5536.22(a)).  Similarly, the American Institute of Architects (AIA) standard form agreement establishes the architect’s standard role during project construction.  The standard form contract includes various clauses that specify how the architect will serve as the initial decision-maker, certify payment applications, and respond to submittals.  Owners may also specify whether the architect will work on all phases of the project, or if the scope will be more limited to preconstruction services for example (See Form B101 [at Procurement and Delivery Method]).

Owners should carefully evaluate the need for architects to perform the standard functions on their projects at the time of contracting.  Numerous cost-savings opportunities exist during the construction phase.  For example, for owners with construction-savvy project managers who may wish to avoid paying additional fees, owners should try not to allow limiting language in the architect contract with regard to the number of project meetings, the number of times that architects will review submittals, or other language limiting the architect’s tasks.  However, if the architect demands a limited review, limited number of meetings, or other limiting language, the owner should account for those potential additional costs in the construction contract.

The construction phase also presents opportunities to facilitate the timely and efficient completion of projects based on the architect’s role.  For instance, architects can serve as the initial decision maker when disputes arise between the owner and the contractor as included in AIA’s standard form contract (See AIA Documents A201-2017, B101-2017).  Additionally, some owners may wish to handle review of payment applications on their own and skip the certification of payment applications by the architect.  Thus, these roles can be modified depending on the owner’s goals, experience of the architect and project manager, or other considerations.  Importantly, the general conditions in the construction agreements will also need to track with changes to the architect contract’s standard form.

As touched on here, there are several opportunities to improve the construction process through specifying the architect’s role during construction.  Owners should also work with their counsel to ensure appropriate modifications to the standard form contracts are included in the construction contract documents that are consistent with the parties’ expectations.

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