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AIA Document A201 -2017, General Conditions of the Contract for Construction
“The AIA A201… General Conditions of the Contract for Construction is one of the most common documents in the construction industry. The A201 establishes most of the general terms between the Architect, the Owner, the Contractor, and in many cases, the subcontractors. The A201 is generally used in connection with one of the other AIA contract forms, and together establish the terms of the contract.”
– The AIA 201: General Conditions, Wade B. Gochnour, Esq., Howard & Howard
AIA Document Comparative: A201 - 2017 compared to A201 - 2007
Compares the A201-2017 and the A201-2007 version using track changes to show what information was added, using underlines and what information was deleted, using strikethroughs.
AIA A201: 2017 Changes
Kegler Brown Construction Newsletter
July 26, 2017
by Don Gregory
https://www.keglerbrown.com/publications/aia-a201-2017-changes/
Every 10 years, AIA revises a particular document. This year the A201 General Conditions are being modified. Most of the changes are “no big deal” with a few exceptions noted below:
1.1.8 The Initial Decision Maker (normally the Architect) shall be impartial to both Owner and Contractor, and shall not be liable for decisions in good faith.
1.8 Relying upon Building Information Models (BIM) is at the relying party’s risk.
2.2.2 If the Owner fails to provide proof of financial assurance within 14 days of the Contractor’s request, the Contractor may stop work until reasonable evidence is provided.
2.3.3 If the Architect is terminated, the Owner must find a successor to whom the Contractor has no reasonable objection.
7.4 If the Contractor performs the Architect’s order for minor changes in the work without prior notice of price or time ramifications, those adjustments are waived.
9.3.1 Releases and waivers of claims from Subs/Suppliers may be required with pay applications.
9.6.4 Owner may contact not only Subs, but also Suppliers, to see if they have been properly paid.
9.6.8 Provided Owner has fulfilled his payment obligations, the Contractor shall indemnify Owner from liens.
9.10.4 Making of final payment does not waive claims arising from a subsequent Owner audit.
11.1.1 Owner, Architect and Architect’s consultants are to be named as Additional Insureds under Contractor’s CGL policy.
11.1.3 Contractor shall provide a copy of any bonds to potential beneficiaries upon request (i.e., Sub requesting Payment Bond).
11.1.4 Contractor must notify Owner within 3 business days of cancellation/expiration of insurance.
11.2.2 In the event the Owner fails to procure required insurance coverage, Owner waives claims to the extent loss would have been covered under insurance.
11.2.3 Owner must notify Contractor within 3 business days of cancellation/expiration of insurance. In the event the Owner fails to procure required property insurance coverage, Owner waives claims to the extent loss would have been covered under insurance.
14.4.3 In the event of a termination for convenience, costs attributable to terminations of subcontracts and termination fee (if any) are recoverable rather than reasonable overhead and profit on unperformed work.
15.1.1 Owner need not file a claim to impose liquidated damages.
15.1.2 All claims must be asserted no later than 10 years after substantial Completion of the work.
15.2.6.1 If mediation is demanded within 30 days after receipt of a decision from the Initial Decision Maker and a party fails to do so within 30 days of receipt, then mediation and an ability to challenge the decision is waived.
15.4.1 Arbitration shall be located where the project is located.
An Insurance and Bonds exhibit is to accompany the Owner-Contractor Agreement.
1.1.1 The Contract Documents
1.1.1 The Contract Documents are enumerated in the Agreement between the Owner and Contractor (hereinafter the Agreement) and consist of the Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract, other documents listed in the Agreement, and Modifications issued after execution of the Contract. A Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive, or (4) a written order for a minor change in the Work issued by the Architect. Unless specifically enumerated in the Agreement, the Contract Documents do not include the advertisement or invitation to bid, Instructions to Bidders, sample forms, other information furnished by the Owner in anticipation of receiving bids or proposals, the Contractor’s bid or proposal, or portions of Addenda relating to bidding or proposal requirements.
Commentary
Note 1: The Contract Documents defined here generally apply to the owner-contractor contract. In addition, specific parts of the contract documents, mainly the General Conditions (i.e., A201) are adopted (usually by reference) into other contracts. This serves to coordinate the legal relationships on the project. Some public owners require that the bidding requirements be included in the definition of the contract documents. This may create conflicts or ambiguities with the other documents that comprise the contract. This problem can be avoided if the bidding requirements are superseded when the contract for construction is awarded. If statutorily required contract language is contained in the bidding requirements, such language can be included in the supplementary conditions.
Note 2: 1.1.1 defines the Contract Documents. It includes the chosen Agreement form between the Owner and Contractor; the Conditions, including the General Conditions, supplementary or other conditions; the Drawings; the Specifications; any Addenda issued before execution of the Contract; as well as any Modifications (Change Orders) issued after execution of the Contract. 1.1.1 also excludes certain items from the Contract Documents. These include any invitations to bid, bidder instructions, sample forms, and the bids and proposals received.
Identification of all documents to be included in the Contract Documents is important so that the parties each know which documents and materials describe the project and set out the obligations of each party. 1.1.1 includes many of the documents necessary for the construction of the project. However, 1.1.1 does not include designs prepared by or on behalf of the Contractor, such as shop drawings. Owners and Contractors should make sure that the A201 sets forth all of the documents and materials that should be included as part of the Contract Documents upon which their performance will be based, whether existing now or created later.
One key issue to define is the priority of the various documents. It is not uncommon to find inconsistencies between the Contract Documents. This issue is partly addressed by 1.2.1, which states that the intent of the Contract Documents is to be complementary, so that any item required by one document will be required by all of the documents. Defining the order of precedence will help to avoid unnecessary delays and disagreements.
Note 3 on 2017 vs. 2007: The last sentence of this section has been modified to recognize that portions of Addenda relating to both bidding and proposal requirements are excluded from the Contract Documents unless agreed otherwise. Previously, the document only specifically excluded portions of Addenda relating to bidding requirements.
1.1.2 The Contract
1.1.2 The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations, or agreements, either written or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Contractor and the Architect or the Architect’s consultants, (2) between the Owner and a Subcontractor or a Sub-subcontractor, (3) between the Owner and the Architect or the Architect’s consultants, or (4) between any persons or entities other than the Owner and the Contractor. The Architect shall, however, be entitled to performance and enforcement of obligations under the Contract intended to facilitate performance of the Architect’s duties.
Commentary
One effect of the words entire and integrated agreement is that everything discussed as part of contract negotiations that conflicts with, is inconsistent with, or is omitted from, the written agreement is not part of the contract. AIA Document A201–2017 and its related family of AIA documents is based on the premise that legal relationships on a construction project are comprised of two-party contractual arrangements. Thus, there are the owner-contractor contract, owner-architect contract, contractor-subcontractor contracts and architect-consulting engineering contract(s). Each party to those respective contracts is deemed to be in privity only with the other party to the contract. There is no direct contractual relationship between the architect and the contractor. The architect is in some instances entitled to enforce certain obligations of the contractor (such as indemnifying the architect for certain risks, performing warranty obligations, providing certain types of insurance and affording the architect access to the work). The architect has the right to enforce these obligations directly against the contractor regardless of whether the owner does so on its own behalf.
1.1.3 The Work
1.1.3 The term “Work” means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment, and services provided or to be provided by the Contractor to fulfill the Contractor’s obligations. The Work may constitute the whole or a part of the Project.
Commentary
The term Work appears throughout the A201 family of documents. As a defined term and capitalized term, work is especially important (1) for describing the contractor’s obligations to provide improvements to the project, (2) for defining the scope of the property insurance required under Section 11.3, and (3) for distinguishing between the contractor’s efforts and the efforts of the owner’s other contractor(s) who may also be on the project. As a capitalized term, the word Work refers only to work performed by the contractor, not to any work performed by the owner’s own forces or by a separate contractor pursuant to Section 6.1.
1.1.4 The Project
1.1.4 The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the Owner and by Separate Contractors.
Commentary
The term Project is broader than the term Work, and may involve separate contractors or the owner’s own forces. Each separate contract includes a scope of work that is unique to that contract.
1.1.5 The Drawings
1.1.5 The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules, and diagrams.
Commentary
The term Drawings does not imply representations presented only in paper format. In addition to the drawings the architect issues for bidding and/or negotiation, drawings are also found in addenda, change orders, construction change directives, minor changes in the work, other modifications in the work, or in responses to the contractor’s requests for information.
1.1.6 The Specifications
1.1.6 The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services.
Commentary
The Specifications are written descriptions that qualitatively define the work. It is now common construction industry practice to organize the Specifications according to the divisions of MASTERFORMAT, a publication of the Construction Specifications Institute. Each division is further organized into a collection of custom sections which describe the general scope, products to be used and execution of the particular item of work, such as cast-in-place concrete.
1.1.7 Instruments of Service
1.1.7 Instruments of Service are representations, in any medium of expression now known or later developed, of the tangible and intangible 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.
Commentary
The term Instruments of Service refers to more than just drawings, specifications, models and other documents the architect creates in performing design services. Rather, instruments of service represent every embodiment of the professional services that the architect provides, regardless of form. This term underscores the fact that these documents, whether in printed or electronic form, cannot be separated from the services the architect provides through them and through other activities on the project.
1.1.8 Initial Decision Maker (Revised 2017)
1.1.8 The Initial Decision Maker is the person identified in the Agreement to render initial decisions on Claims in accordance with Section 15.2. The Initial Decision Maker shall not show partiality to the Owner or Contractor and shall not be liable for results of interpretations or decisions rendered in good faith.
Commentary
This section has been revised to clarify that the initial decision maker may not show partiality to the Owner or Contractor and will not be liable for the results of interpretations and decisions rendered in good faith.
1.2.1 Intent of the Contract Documents
1.2.1 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results.
1.2.1.1 The invalidity of any provision of the Contract Documents shall not invalidate the Contract or its remaining provisions. (New 2017)
1.2.1.1 The invalidity of any provision of the Contract Documents shall not invalidate the Contract or its remaining provisions. If it is determined that any provision of the Contract Documents violates any law, or is otherwise invalid or unenforceable, then that provision shall be revised to the extent necessary to make that provision legal and enforceable. In such case the Contract Documents shall be construed, to the fullest extent permitted by law, to give effect to the parties’ intentions and purposes in executing the Contract.
Commentary
This new provision has been included to avoid a situation where the entire Contract, or a provision of the Contract, may be rendered invalid because a provision of the Contract is held invalid or unenforceable by a court of law or arbitrator(s). Where a provision of the Contract has been deemed invalid or unenforceable, such provision will be read out of the Contract to the extent necessary to maintain the validity and enforceability of the remainder of the Contract or provision.
1.2.2 Organization of the Specifications into divisions, sections and articles
1.2.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade.
Commentary
The contractor is responsible for allocating portions of the work to the subcontractors and others, within the limits required by the contract documents, irrespective of the organization of the specifications.
1.2.3 Unless otherwise stated in the Contract Documents, words that have well-known technical or construction industry meanings are used…
1.2.3 Unless otherwise stated in the Contract Documents, words that have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings
1.3 Capitalization
1.3 Capitalization
Terms capitalized in these General Conditions include those that are (1) specifically defined, (2) the titles of numbered articles or (3) the titles of other documents published by the American Institute of Architects.
1.4 Interpretation
1.4 Interpretation
In the interest of brevity the Contract Documents frequently omit modifying words such as “all” and “any” and articles such as “the” and “an,” but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement.
1.5 Ownership and Use of Drawings, Specifications, and Other Instruments of Service
1.5.1 The Architect and the Architect’s consultants shall be deemed the authors and owners of their respective Instruments of Service, including the Drawings and Specifications, and retain all common law, statutory, and other reserved rights in their Instruments of Service, including copyrights. The Contractor, Subcontractors, Sub-subcontractors, and suppliers shall not own or claim a copyright in the Instruments of Service. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with the Project is not to be construed as publication in derogation of the Architect’s or Architect’s consultants’ reserved rights.
Commentary for 1.5.1
Technological advances, such as computer-aided design, have and will continue to have an impact on the architect’s services and the manner in which they are provided. The architect’s services are reflected in instruments of service, such as drawings, specifications, electronic data or interpretive sketches which help the owner to reach the final result, a building project. Because the use or misuse of the architect’s instruments of service affects specific rights and obligations affecting the owner, the construction team and the public, the architect as a licensed professional retains ownership of, control over, and responsibility for these documents.
1.5.2 The Contractor, Subcontractors, Sub-subcontractors, and suppliers are authorized to use and reproduce the Instruments of Service provided to them, subject to any protocols established pursuant to Sections 1.7 and 1.8, solely and exclusively for execution of the Work. All copies made under this authorization shall bear the copyright notice, if any, shown on the Instruments of Service. The Contractor, Subcontractors, Sub-subcontractors, and suppliers may not use the Instruments of Service on other projects or for additions to the Project outside the scope of the Work without the specific written consent of the Owner, Architect, and the Architect’s consultants.
Commentary for 1.5.2
Through its agreement with the owner, the architect grants the owner a limited license to use the architect’s instruments of service solely for use on the project. That license allows the owner, through A201, to authorize the contractor and the various subcontractors, subsubcontractors and suppliers to use the instruments of service solely to construct the project. Restrictions on use of the instruments of service protect the interests of the owner, architect and architect’s consultants, and also serve to protect the public from harm that may result from their misapplication.
1.6 Notice
1.6.1 Except as otherwise provided in Section 1.6.2, where the Contract Documents require one party to notify or give notice to the other party, such notice shall be provided in writing…
See separate card.
1.6.2 Notice of Claims as provided in Section 15.1.3 shall be provided in writing…
See separate card
Commentary for 1.6 Notice
The section on written notice has been moved from Article 13 to Article 1. In addition, the revised provision requires that all notices under the Contract be in writing. Additionally, language has been included that allows the parties to provide notice through electronic means, such as email. Notice of Claims may not be provided electronically and must be delivered to the designated representative of the party to whom the notice is addressed by certified or registered mail, or by courier providing proof of delivery.
1.6.1 Except as otherwise provided in Section 1.6.2, where the Contract Documents require one party to notify or give notice to the other party… (New 2017)
1.6.1 Except as otherwise provided in Section 1.6.2, where the Contract Documents require one party to notify or give notice to the other party, such notice shall be provided in writing to the designated representative of the party to whom the notice is addressed and shall be deemed to have been duly served if delivered in person, by mail, by courier, or by electronic transmission if a method for electronic transmission is set forth in the Agreement.
1.6.2 Notice of Claims as provided in Section 15.1.3 shall be provided in writing… (New 2017)
1.6.2 Notice of Claims as provided in Section 15.1.3 shall be provided in writing and shall be deemed to have been duly served only if delivered to the designated representative of the party to whom the notice is addressed by certified or registered mail, or by courier providing proof of delivery.
1.7 Digital Data Use and Transmission (Revised 2017)
1.7 The parties shall agree upon protocols governing the transmission and use of Instruments of Service or any other information or documentation in digital form. The parties will use AIA Document E203™-2013, Building Information Modeling and Digital Data Exhibit, to establish the protocols for the development, use, transmission, and exchange of digital data.
Commentary
Formerly Section 1.6 in AIA Document A201–2007, this section now requires the use of AIA Document E203™–2013, Building Information Modeling and Digital Data Exhibit for the development of protocols for the transmission of Instruments of Service or other data in digital form.
1.8 Building Information Models Use and Reliance (New 2017)
1.8 Any use of, or reliance on, all or a portion of a building information model without agreement to protocols governing the use of, and reliance on, the information contained in the model and without having those protocols set forth in AIA Document E203TM–2013, Building Information Modeling and Digital Data Exhibit, and the requisite AIA Document G202TM–2013, Project Building Information Modeling Protocol Form, shall be at the using or relying party’s sole risk and without liability to the other party and its contractors or consultants, the authors of, or contributors to, the building information model, and each of their agents and employees.
Commentary
This new section requires the parties to develop protocols for the use of, and reliance on, a building information model or portion thereof. Use of, or reliance on, a building information model without established protocols will be at the using or relying parties sole risk. This provision requires the use of AIA Document E203–2013 and AIA Document G202™–2013, Project Building Information Modeling Protocol Form, for the establishment of these protocols.
“Any use of or reliance on Building Information Models without agreement to the protocols will be at the using parties’ sole risk.”
– Zurich Insurance, “Comparison of 2007 and 2017 AIA contract documents: Key changes in AIA A201™ and AIA B101™” https://www.zurichna.com/en/knowledge/articles/2017/10/comparison-of-2007-and-2017-aia-contract-documents
Article 2 Owner
The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number.
2.1 General
See separate card.
2.2 Evidence of the Owner’s Financial Arrangements
See separate card.
2.3 Information and Services Required of the Owner
See separate card.
2.4 Owner’s Right to Stop the Work
See separate card.
2.5 Owner’s Right to Carry Out the Work
See separate card.
Owner
2.1 General
2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all matters requiring the Owner’s approval or authorization. Except as otherwise provided in Section 4.2.1, the Architect does not have such authority. The term “Owner” means the Owner or the Owner’s authorized representative.
Commentary for 2.1.1
The term Owner is used to designate the party contracting with the construction contractor. That person or entity may or may not actually own the land or building where the project is sited. For example, the owner may be a tenant. If that is the case, the land or building owner may be designated as the landlord. Because the owner may not personally take an active, ongoing role in the project, the owner is required to designate a representative with authority to make decisions that bind the owner. Having such a representative can ensure timely decision making and keep the project moving. This representative is named in AIA owner-contractor agreements. For certain purposes set forth in Article 4, the architect also serves as the owner’s representative. The architect is not the owner’s designated representative referred to in Section 2.1.1.
If the owner designates more than one representative, the separate roles and functions of each individual should be clearly defined to avoid conflicts, gaps and confusion as to each individual’s proper authority to act on behalf of the owner.
2.1.2 The Owner shall furnish to the Contractor, within fifteen days after receipt of a written request, information necessary and relevant for the Contractor to evaluate, give notice of, or enforce mechanic’s lien rights. Such information shall include a correct statement of the record legal title to the property on which the Project is located, usually referred to as the site, and the Owner’s interest therein.
Commentary for 2.1.2
State mechanic’s lien statutes require that the party seeking to assert a lien file documents stating the correct legal description of the property against which the lien claim is being asserted. If the statute is not strictly complied with, the filing may not be adequate to enforce the lien. Thus, the lien rights of the contractor, subcontractors and sub-subcontractors may depend on the information required of the owner under this section.
2.2 Evidence of the Owner’s Financial Arrangements (Revised 2017)
2.2.1 Prior to commencement of the Work and upon written request by the Contractor, the Owner shall furnish to the Contractor reasonable evidence that the Owner has made financial arrangements to fulfill the Owner’s obligations under the Contract. The Contractor shall have no obligation to commence the Work until the Owner provides such evidence. If commencement of the Work is delayed under this Section 2.2.1, the Contract Time shall be extended appropriately.
2.2.2 Following commencement of the Work and upon written request by the Contractor, the Owner shall furnish to the Contractor reasonable evidence that the Owner has made financial arrangements to fulfill the Owner’s obligations under the Contract only if (1) the Owner fails to make payments to the Contractor as the Contract Documents require; (2) the Contractor identifies in writing a reasonable concern regarding the Owner’s ability to make payment when due; or (3) a change in the Work materially changes the Contract Sum. If the Owner fails to provide such evidence, as required, within fourteen days of the Contractor’s request, the Contractor may immediately stop the Work and, in that event, shall notify the Owner that the Work has stopped. However, if the request is made because a change in the Work materially changes the Contract Sum under (3) above, the Contractor may immediately stop only that portion of the Work affected by the change until reasonable evidence is provided. If the Work is stopped under this Section 2.2.2, the Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Contractor’s reasonable costs of shutdown, delay and start-up, plus interest as provided in the Contract Documents.
2.2.3 After the Owner furnishes evidence of financial arrangements under this Section 2.2, the Owner shall not materially vary such financial arrangements without prior notice to the Contractor.
2.2.4 Where the Owner has designated information furnished under this Section 2.2 as “confidential,” the Contractor shall keep the information confidential and shall not disclose it to any other person. See separate card.
Commentary for 2.2.4
The Contractor may require the Owner to furnish evidence of its financial arrangements to pay for the initial scope of work and then for changes to the work that materially change the contract sum. Prior to commencement, the Contractor will have no obligation to commence the work until the Owner provides the evidence of financing. Following commencement of the work, the Contractor may stop work if the Owner fails to provide satisfactory evidence within 14 days of a request because the Owner is late in making payments; the Contractor has raised a reasonable concern about the ability of the Owner to pay; or the scope of work has been changed such that it materially changes the contract sum.
2017 vs. 2007: 2.2 - The provisions requiring the Owner to provide evidence that it has made financial arrangements for the Project have been modified for clarity. The Contractor’s right to request financial information remains largely unchanged from the 2007 edition. However, new language has been added as Section 2.2.4 to recognize that financial information provided by the Owner should be treated as confidential by the Contractor.
2.2.4 Where the Owner has designated information furnished under this Section 2.2 as “confidential,” the Contractor shall keep the information confidential and shall not disclose it to any other person. (New 2017)
2.2.4 Where the Owner has designated information furnished under this Section 2.2 as “confidential,” the Contractor shall keep the information confidential and shall not disclose it to any other person. However, the Contractor may disclose “confidential” information, after seven (7) days’ notice to the Owner, where disclosure is required by law, including a subpoena or other form of compulsory legal process issued by a court or governmental entity, or by court or arbitrator(s) order. The Contractor may also disclose “confidential” information to its employees, consultants, sureties, Subcontractors and their employees, Sub-subcontractors, and others who need to know the content of such information solely and exclusively for the Project and who agree to maintain the confidentiality of such information.
Commentary
Confidential Information: Contractor now may disclose confidential information after seven (7) days notice to the Owner, where the disclosure is required by law. This exception allowing disclosure previously had to be hand-drafted into the contracts.
– Zurich Insurance, “Comparison of 2007 and 2017 AIA contract documents: Key changes in AIA A201™ and AIA B101™” https://www.zurichna.com/en/knowledge/articles/2017/10/comparison-of-2007-and-2017-aia-contract-documents
2.3 Information and Services Required of the Owner
2.3.1 Except for permits and fees that are the responsibility of the Contractor under the Contract Documents, including those required under Section 3.7.1, the Owner shall secure and pay for necessary approvals, easements, assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities.
2.3.2 The Owner shall retain an architect lawfully licensed to practice architecture, or an entity lawfully practicing architecture, in the jurisdiction where the Project is located. That person or entity is identified as the Architect in the Agreement and is referred to throughout the Contract Documents as if singular in number.
2.3.3 If the employment of the Architect terminates, the Owner shall employ a successor to whom the Contractor has no reasonable objection and whose status under the Contract Documents shall be that of the Architect.
2.3.4 The Owner shall furnish surveys…
See separate card.
2.3.5 The Owner shall furnish information or services required of the Owner by the Contract Documents with reasonable promptness. The Owner shall also furnish any other information or services under the Owner’s control and relevant to the Contractor’s performance of the Work with reasonable promptness after receiving the Contractor’s written request for such information or services.
2.3.6 Unless otherwise provided in the Contract Documents, the Owner shall furnish to the Contractor one copy of the Contract Documents for purposes of making reproductions pursuant to Section 1.5.2.
2.3.4 The Owner shall furnish surveys
2.3.4 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a legal description of the site. The Contractor shall be entitled to rely on the accuracy of information furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work.
Commentary
It is appropriate for the owner to furnish surveys of the site because, as the owner of the land, the owner has the most knowledge of it and control over it. If the owner is a tenant, it may need to obtain the survey from the building or land owner. The contractor should be able to rely upon the surveys and not have to duplicate this effort and expense.
2.4 Owner’s Right to Stop the Work
2.4 If the Contractor fails to correct Work that is not in accordance with the requirements of the Contract Documents as required by Section 12.2 or repeatedly fails to carry out Work in accordance with the Contract Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity, except to the extent required by Section 6.1.3.
Commentary:
Under the proper circumstances, the owner may stop the work. In this provision, the owner’s right to stop work relates specifically to the contractor’s failure to comply with the contract documents. This right may be exercised by the owner or the owner’s designated representative under Section 2.1.1.
2.5 Owner’s Right to Carry Out The Work (Revised 2017)
2.5 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a ten-day period after receipt of notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may, without prejudice to other remedies the Owner may have, correct such default or neglect. Such action by the Owner and amounts charged to the Contractor are both subject to prior approval of the Architect and the Architect may, pursuant to Section 9.5.1, withhold or nullify a Certificate for Payment in whole or in part, to the extent reasonably necessary to reimburse the Owner for the reasonable cost of correcting such deficiencies, including Owner’s expenses and compensation for the Architect’s additional services made necessary by such default, neglect, or failure. If current and future payments are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner. If the Contractor disagrees with the actions of the Owner or the Architect, or the amounts claimed as costs to the Owner, the Contractor may file a Claim pursuant to Article 15.
Commentary
Revisions to this section clarify that when the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents, the Owner may correct the Work and the Architect may withhold or nullify a Certificate for Payment to the extent reasonably necessary to reimburse the Owner for the cost of correction. Previously, this provision required a Modification to the Contract Documents to effectuate the withholding. A Modification is impractical because it would require agreement by the Contractor to the withholding. If the Contractor disagrees with the withholding, it may make a Claim in accordance with Article 15.
Article 3 Contractor
The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The Contractor shall be lawfully licensed, if required in the jurisdiction where the Project is located.
3.1 General
See separate card.
3.2 Review of Contract Documents and Field Conditions by Contractor
See separate card.
3.3 Supervision and Construction Procedures
See separate cards
Contractor
3.1 General
3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The Contractor shall be lawfully licensed, if required in the jurisdiction where the Project is located. The Contractor shall designate in writing a representative who shall have express authority to bind the Contractor with respect to all matters under this Contract. The term “Contractor” means the Contractor or the Contractor’s authorized representative.
Commentary for 3.1.1
In jurisdictions where contractors are required to be licensed, unlicensed contractors may not be permitted to file mechanic’s liens or to institute legal proceedings involving the project. The contractor’s duty to designate a representative mirrors the owner’s under Section 2.1.1. This representative is named in AIA owner-contractor agreements. Other persons or entities authorized to represent the contractor (such as the construction superintendent or project manager) should be identified to the owner and architect. If the contractor designates more than one representative, the separate roles and functions of each individual should be clearly defined to avoid conflicts, gaps and confusion as to each individual’s proper authority to act on behalf of the contractor.
3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents.
Commentary for 3.1.2
The contractor’s scope of work is set forth in the contract documents. The contractor is responsible for performing all work shown and specified, unless it is specifically stated to be the work of others.
3.1.3 The Contractor shall not be relieved of its obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect’s administration of the Contract, or by tests, inspections or approvals required or performed by persons or entities other than the Contractor.
Commentary for 3.1.3
The contractor cannot claim that it has been released from its obligation to perform the work in conformance with the contract documents or to correct nonconforming work because the architect has not specifically rejected that portion of the work or because the architect has approved payment for it.
3.2 Review of Contract Documents and Field Conditions by Contractor
3.2.1 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become generally familiar with local conditions under which the Work is to be performed, and correlated personal observations with requirements of the Contract Documents.
3.2.2 Because the Contract Documents are complementary, the Contractor shall, before starting each portion of the Work, carefully study and compare the various Contract Documents relative to that portion of the Work, as well as the information furnished by the Owner pursuant to Section 2.3.4, shall take field measurements of any existing conditions related to that portion of the Work, and shall observe any conditions at the site affecting it. These obligations are for the purpose of facilitating coordination and construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, the Contractor shall promptly report to the Architect any errors, inconsistencies or omissions discovered by or made known to the Contractor as a request for information in such form as the Architect may require. It is recognized that the Contractor’s review is made in the Contractor’s capacity as a contractor and not as a licensed design professional, unless otherwise specifically provided in the Contract Documents.
Commentary for 3.2.2
The contractor is required to report errors and omissions promptly in order to minimize the costs of correction. The contractor’s failure promptly to report errors and omissions may result in liability to the contractor, pursuant to Section 3.2.4, for remediation costs that would have been avoided by prompt notice. The contractor is not expected to engage in a professional review of the architect’s design. If professional design services are required of the contractor pursuant to Section 3.12.10, review of the architect’s design by the contractor’s design professional is required to the extent necessary for the contractor’s design professional to design those elements that the contractor is obligated by the contract documents to both design and build.
3.2.3 The Contractor is not required to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, but the Contractor shall promptly report to the Architect any nonconformity discovered by or made known to the Contractor as a request for information in such form as the Architect may require.
Commentary for 3.2.3
As with the discovery of errors and omissions in Section 3.2.2, prompt notice is required in order to minimize the costs of correction. This obligation does not require the contractor to review the contract documents for the purpose of seeking out nonconformities, but only to report those nonconformities that the contractor discovers. The contractor’s failure to report promptly nonconformities that it discovers may result in liability to the contractor, pursuant to Section 3.2.4, for remediation costs that would have been avoided by prompt notice.
3.2.4 If the Contractor believes that additional cost or time is involved because of clarifications or instructions the Architect issues in response to the Contractor’s notices or requests for information pursuant to Sections 3.2.2 or 3.2.3, the Contractor shall submit Claims as provided in Article 15. If the Contractor fails to perform the obligations of Sections 3.2.2 or 3.2.3, the Contractor shall pay such costs and damages to the Owner, subject to Section 15.1.7, as would have been avoided if the Contractor had performed such obligations. If the Contractor performs those obligations, the Contractor shall not be liable to the Owner or Architect for damages resulting from errors, inconsistencies or omissions in the Contract Documents, for differences between field measurements or conditions and the Contract Documents, or for nonconformities of the Contract Documents to applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities.
Commentary for 3.2.4
Pursuant to Sections 3.2.2 and 3.2.3, the contractor’s duty to report arises when design errors or omissions, or nonconformities are discovered or made known to the contractor. The failure to make prompt notification, or the contractor’s failure to perform other obligations set forth in Sections 3.2.2 or 3.2.3, may result in liability to the contractor for the remediation costs that would have been avoided by prompt notice.
3.3 Supervision and Construction Procedures
3.3.1 The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention.
See separate card.
3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor’s employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for, or on behalf of, the Contractor or any of its Subcontractors.
3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work.
3.3.1 The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention (Revised 2017)
3.3.1 The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention. The Contractor shall be solely responsible for, and have control over, construction means, methods, techniques, sequences, and procedures, and for coordinating all portions of the Work under the Contract. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences, or procedures, the Contractor shall evaluate the jobsite safety thereof and shall be solely responsible for the jobsite safety of such means, methods, techniques, sequences, or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely notice to the Owner and Architect, and shall propose alternative means, methods, techniques, sequences, or procedures. The Architect shall evaluate the proposed alternative solely for conformance with the design intent for the completed construction. Unless the Architect objects to the Contractor’s proposed alternative, the Contractor shall perform the Work using its alternative means, methods, techniques, sequences, or procedures.
Commentary
“AIA Document A201, Sec. 3.3.1, states that the contractor is solely responsible for the means and methods of construction. In this case, the contract documents call for a specific procedure in order to achieve the architect’s aesthetic objectives. The contractor’s responsibility in this situation is to review the recommendations and evaluate the implications for jobsite safety. If the recommendation poses no threat, the contractor will proceed accordingly. If the contractor determines that the procedures required may create an unsafe situation, the contractor must give timely written notice to the owner and architect and propose an alternative way of accomplishing this work and achieving the design intent. If the architect has no objection to the contractor’s proposal, the contractor may then perform the work according to these alternative means and methods.” – Kaplan, Inc.
“Means, Methods and Techniques: If the contract documents give specific instructions of means and methods, then the Contractor must evaluate the jobsite safety of the same. If it determines they may not be safe, the Contractor must notify the Owner and Architect and propose different means and methods. Those will be reviewed by the Architect solely for conformance with the design intent for the completed construction. This puts responsibility on the Contractor to come up with the approach in the event that it determines the means and methods specified by the Architect are not safe. It relieves the Architect of responsibility for the Contractor’s means and methods. Under the 2007 edition, if the Contractor determined that the means and methods specified by the Owner’s Architect were not safe and it gave timely notification to the Owner who then instructed it to proceed without accepting changes proposed by the Contractor, the Owner would be responsible for any loss resulting from the means and methods required by the Owner. This revised section appears to eliminate that affirmative assumption of the risk by the Owner.”
– Zurich Insurance, “Comparison of 2007 and 2017 AIA contract documents: Key changes in AIA A201™ and AIA B101™” https://www.zurichna.com/en/knowledge/articles/2017/10/comparison-of-2007-and-2017-aia-contract-documents
Commentary on 3.3.1 in AIA A201 - 2017: This section has been modified to address concerns that the Contractor could be required to perform construction means or methods specified in the Contract Documents that it deems unsafe. Under the new language, where the Contractor deems construction means and methods proposed in the Contract Documents to be unsafe, it may perform under alternative means and methods provided the Architect does not object.
3.4 Labor and Materials
3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work.
3.4.2 Except in the case of minor changes in the Work approved by the Architect in accordance with Section 3.12.8 or ordered by the Architect in accordance with Section 7.4, the Contractor may make substitutions only with the consent of the Owner, after evaluation by the Architect and in accordance with a Change Order or Construction Change Directive.
Commentary for 3.4.2
Changes in the work may be accomplished as minor changes in the work, change orders and construction change directives as set forth in Section 7.1.1. Substitutions made after execution of the agreement are changes in the work and must be made in accordance with Article 7.
3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor’s employees and other persons carrying out the Work. The Contractor shall not permit employment of unfit persons or persons not properly skilled in tasks assigned to them.
