#57: The New AIA A201 (2017): Not Much Is Different
Every ten years, the American Institute of Architects revises and updates its standard form Owner-Contractor A-series documents, including the popular A201 General Conditions. The latest version released in April 2017 has some updates, rearranges some sections and tweaks some language – but by and large, the changes are rather minor. A comparison of the 2017 and 2007 versions may be found here: aiad8.prod.acquia-sites.com/sites/default/files/2017-04/A201%202017%20Comparative%20and%20A101%20Exhibit.pdf
Here are some of the salient changes:
Revised Section 1.1.8 makes express what was formerly implied: that the Initial Decision Maker (typically the Architect) must be impartial to both the owner and the contractor, and shall not be liable for decisions made in good faith.
Revised Section 2.2 obliges the owner to provide “reasonable evidence” that it can fulfill its financial obligations under the contract. If that evidence is not provided, the contractor need not start work. If there is a change in the work “materially altering” the contract sum, upon written request the owner must provide updated financial information, failing which the contractor may refuse to perform the portion of the work affected by the change.
New Section 3.5.2 requires that all “material, equipment, or other special warranties required by the Contract documents” be issued in the owner’s name.
Revised Section 184.108.40.206 formally adopts the Spearin doctrine, entitling the contractor “to rely upon the adequacy and accuracy of the performance and design criteria provided in the Contract Documents,” while deleting the prior language that “the Contractor shall not be responsible for the adequacy of the performance and design criteria specified in the Contract Documents.”
Revised Section 7.4 allows the contractor to object to a “minor change” proposed by the architect if the contractor disagrees the the change will have no effect on Contract Price or Contract Time, and refuse to perform it until the effect is determined. Failure to object and proceeding with the change, however, waives a later claim for adjustment.
Article 11's Insurance and Bond provisions have been scaled back in favor of moving many of the 2007 form provisions to a new Insurance and Bond Exhibit that allows the parties to negotiate check-the-box insurance coverage requirements. Remaining provisions include a few changes: Section 11.1.1 requires the owner, architect and architect’s consultants to be named as additional insureds under the contractor’s CGL policy; Section 11.1.3 requires the contractor to provide a copy of any bonds to potential beneficiaries (e.g., subcontractors and suppliers looking for payment bonds) upon request; Section 11.1.4 and 11.2.3 require each party to notify the other of any lapse of insurance coverage that the party was required to carry within three business days; and Section 11.2.2 waives claims by the owner for any loss that would have been covered by insurance that the owner was required to procure but didn't.
New Section 15.1 adds what amounts to a statute of repose, providing that all claims must be asserted within 10 years after substantial completion. (New Hampshire's statute already limits claims to 8 years after substantial completion.)
Revised Section 220.127.116.11 now states that if a demand for mediation is made within 30 days after receipt of a decision from the Initial Decision Maker (rather than the former 60 days) and the other party fails to participate within 30 days of receipt, both mediation and the ability to challenge the Initial Decision are waived.
As always, using the AIA form simply sets default rules; the parties are free to modify them as they see fit. (Here's a bold prediction: the most deleted provision of the new 2017 A201 will be Section 1.7, which calls for the use of AIA Document E203 – 2013, Building Information Modeling (BIM) and Digital Data Exhibit. Going digital is a great idea – but for smaller projects, we're just not there yet.)