AIA Releases Sustainable Projects Contract Documents

A Laurie & Brennan article featured in the Construction Law Corner Summer 2012 eNewsletter.

by Daniel Brennan and Joanne Krol

Sustainability is at the forefront of the construction industry. The American Institute of Architects (AIA) recently released a set of new contract documents to define roles and responsibilities and to provide procedures and processes for owner, architects and contractors to identify sustainability goals and to map out a plan to achieve those goals. These documents build upon AIA’s previously-released D503^TM-2011 — Guide for Sustainable Projects.

Background – To respond to industry demand for contract documents sustainability, the AIA released five new “Sustainable Projects” (“SP”) Contract Documents along with an update to document B214^TM-Standard Form of Architect’s Scope of Services for LEED Certification. The newly released SP Contract Documents are:

• A101^TM-2007 SP – Standard Form of Agreement Between Owner and Contractor for Use on a Sustainable Project Where the basis of payment is a Stipulated Sum
• A201^TM-2007 SP – General Conditions of the Contract for Construction, for use on a Sustainable Project
• A401^TM-2007 SP – Standard Form of Agreement Between Contractor and Subcontractor, for use on a Sustainable Project
• B101^TM-2007 SP — Standard Form of Agreement Between Owner and Architect, for use on a Sustainable Project
• C401^TM-2007 SP — Standard Form of Agreement Between Architect and Consultant, for use on a Sustainable Project

Sustainable can mean different things on different projects. The term “sustainable” is used in AIA’s SP Contract Documents to describe projects that incorporate design and construction practices that offer benefits to the environment, promote the health of building users, or increase energy efficiency. The AIA’s SP Contract Documents also recognize and allow for the definition of sustainability to be benchmarked against widely- used standards such as LEED ®, Green Globes, or Energy Star. The new documents are based on standard and familiar AIA Contract Documents, and include key revisions to help all project participants manage the new roles, responsibilities and risks that may be encountered on sustainable projects.

The Sustainability Plan– Under the AIA SP documents, the “Sustainability Plan” is a new Contract Document that identifies and describes the sustainable objective, the targeted sustainable measures, the implementation strategies selected to achieve the sustainable measures, and the owner’s, architect’s and contractor’s roles and responsibilities associated with achieving the sustainable measures. The Sustainability Plan also outlines the specific details about design reviews, testing or metrics to verify achievement of each sustainable measure, and the sustainability documentation required for the project. The Sustainability Plan is the key document that provides the roadmap for the owner, architect and contractor to complete a sustainable project.

Highlights of the SP Documents for Architects — The B101^TM -2007 SP Owner-Architect agreement includes numerous provisions that address the architect’s scope of services for sustainability and limitations on that scope. Highlights include:

• Section 3.3 describes the architect’s responsibility for conducting a pre-design workshop, preparing a Sustainability Plan, incorporating requirements of the Sustainability Plan into drawings and specifications, and collecting documentation for certification to be submitted to the certifying authority.
• Section 3.3.4.2 describes the risks and responsibilities allocated to the architect, stating that the architect shall perform those sustainable measures identified as the responsibility of the architect in the approved Sustainability Plan and any approved changes to the Sustainability Plan.
• The architect’s special concern in avoiding guarantees and warranties is addressed in Section 10.9 which states that the owner and architect acknowledge that achieving the “Sustainable Objective” is dependent on many factors beyond the architect’s control, such as the owner’s use and operation of the project, the work provided by the contractor or the work or services provided by the owner’s other contractors or consultants, or interpretation of requirements by a certifying authority.
• The issue of untested materials and new equipment is addressed in Section 3.3.5.2 which recognizes that the project may require use of materials and equipment that have had limited testing or verification of performance. The architect is to discuss with the owner the potential effects on the Sustainable Objective if such materials or equipment fail to perform in accordance with a manufacturer’s representation. The owner decides whether or not to use the material and if the owner approves the use of a material, the architect is not responsible for failure to achieve the Sustainable Objective as a result of the use of the untested material.
• The traditional consequential damage waiver is expanded in Section 8.1.3 to specifically state that the owner is waiving consequential damages against the architect arising from the failure to achieve the Sustainability Objective including unachieved energy savings, unintended operational expenses, lost financial or tax incentives, or unachieved gains in worker productivity.

Highlights of the SP Documents for Owners – Some key concepts addressed by the SP Contract Documents for owners include the following:

• Section 5.13 of the B101^TM-2007 SP Owner-Architect agreement states that the owner shall perform those sustainable measures specifically identified as the responsibility of the owner in the Sustainability Plan, including any approved changes or as otherwise required by the Contract Documents. The owner must also require that each of its contractors and consultants perform the contractor’s or consultant’s services in accordance with the Sustainability Plan.
• Substantial completion is not contingent upon the achievement of the Sustainability Objective. Section 9.8.1 of the A201^TM-2007 SP General Conditions states that except for Sustainability Documentation which by its nature must be provided after Substantial Completion, the Contractor shall submit the Sustainability Documentation required from the contractor by the Contract Documents no later than the date of Substantial Completion. However, verification that the project has achieved the Sustainable Objective, or the actual achievement of the Sustainable Objective alone, shall not be a condition precedent to issuance of a Certificate of Substantial Completion.

Highlights of SP Documents for Contractors – Some key concepts in the SP Contract Documents that contractors should be aware of include:

• Section 3.1.2 of the A201^TM-2007 SP General Conditions states the contractor shall perform the work in accordance with the Contract Documents, including any sustainable measures identified as the responsibility of the contractor in the Sustainability Plan.
• The effect of a contractor’s request for a substitution on achieving the Sustainable Objective is recognized in the new SP Contract Documents. The A201^TM-2007 SP General Conditions provides language that requires the contractor to identify the effect of a substitution request on a “Sustainable Measure” or the Sustainable Objective and the architect may then rely upon that information.
• The scope of the contractor’s review of site conditions will also be impacted by agreed-upon Sustainable Measures. Section 3.2.2.1 of the A201^TM -2007 SP General Conditions obligates the contractor to notify the owner and architect if the contractor discovers a condition that will adversely affect achievement of a Sustainable Measure.

The AIA has also updated the Standard Form of Architect’s Services for LEED Certification, B214^TM– 2007. The B214^TM-2012 can be used by a lead architect on a project or an architect serving only as a LEED consultant to the owner. The B214^TM-2012 is not intended to be used with the SP documents. However, the form can be used with most other AIA owner-architect Agreements. Included in the updates to the form is language similar to that in B101-2007^TM SP, (e.g. the LEED Workshop and LEED Certification Plan are very similar to the Sustainability Workshop and Sustainability Plan in the B101-2007^TM SP). There is also a similar waiver of guarantees and warranties and a similar waiver of consequential damages.