United States: New 2014 AIA A141 Design Build Documents: Throw-Back or All New?

The American Institute of Architects (AIA) issues new form documents in ten year cycles, and this June they unveiled a new version of their 2004 design build form contracts.  Practitioners who use these documents regularly will see some welcomed improvements as well as some features that are reminiscent of the old 1997 AIA 191 Part 1/Part 2 form. Industry practitioners will likely continue to amend the documents to suit their specific needs, particularly owners.

How is the A141 different from the 2004 version?

When introduced in 2004, the A141 appeared to be patterned after the A101 Agreement between Owner and Contractor, which includes the key terms of price, payment and schedule in the A101.  Likewise, the 2004 A141, was relatively skeletal and provided fill-in boxes for price, payment, retainage, schedule and dispute resolution terms.  The 2004 A141 used Exhibit A to mirror the A201 General Conditions, and even used the same numbering system with respect to the provisions. Finally, the 2004 document included an optional Exhibit B, defining Cost of Work for cost plus or GMP pricing, and Exhibit C for insurance, even though insurance terms and conditions were also set forth in Exhibit A.  The A141 was a single contract executed for the entire design build project, from conceptual design through final completion of construction.  The 2004 design build format was a major departure from the 1997 A191 Part 1 and Part 2 forms for design build project delivery. 

The 2014 A141 agreement is, in some respects, akin to the old A191 Part 1/Part 2 form. The A191 used Part 1 for design development, and Part 2 was separately executed when the parties agreed on price for construction.  Many design builders opted out of using the Part 1 document entirely to avoid the potential pitfall of the owner shopping the preliminary design to other design builders.   Instead of having two parts (one for preliminary design and one for the construction documents and construction phase), the 2014 A141 contemplates an agreed price for preliminary design and the development of a proposal (either a GMP/cost plus or stipulated sum) by the design builder at the time of execution of the A141. Following completion of preliminary design, the design builder proposes a price or GMP.  When the owner and design builder agree on price, they execute an amendment document (Exhibit A) which defines price, payment terms and the schedule for construction. 

Additionally, the 2014 Exhibit A is not a General Conditions document, unlike the 2004 version.  Instead, the General Conditions are integrated into the A141 document.  Exhibit A is truly an amendment, executed upon completion of preliminary design and when the parties come to agreement on price and schedule.

The 2014 Exhibit B is an insurance exhibit.  Unlike the 2004 version (which was Exhibit C), Exhibit B insurance provisions are not potentially duplicative of insurance requirements already provided in the General Conditions. Many practitioners never used Exhibit C of the 2004 version, and instead inserted limits in Section 11 of the 2014 Exhibit A General Conditions.

Other Noteworthy Changes?

The 2014 A141 documents address the prior ambiguity in the 2004 version relating to warranty of design.  Because "the Work" was (and is) defined as both design and construction, the warranty of "the Work" was problematic for design builders, as a design warranty is not insurable. The new 2014 warranty language clearly warrants only materials and equipment, and not "the Work" or design.

There are new expanded reporting requirements that the design builder must provide the project owner.  Practically speaking, most design builders provide this sort of information routinely; however, design builders should carefully review what is required to ensure that they can comply.

Also new is a provision that makes the owner the default initial decision maker.  The new Substantial Completion Certificate is the G744 form.

How do I obtain the new documents?

If you have the AIA software, an update of the software provides the new form.  Of course, the documents can also be purchased through the AIA, or www.aia.org.

The 2004 version will  be available on the AIA software for 18 months.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.