Design/Build Woes
Viktor Koen

Design/build is a project delivery method in which the owner of a project enters into a single agreement with a design/builder to perform both design and construction services. Unlike traditional design/bid/build projects, where the owner contracts separately with an architect for design and a contractor for construction, design/build offers a single point of responsibility for the design and construction of the project. This single point of contact and responsibility, among other benefits, is particularly appealing to residential owners who would rather avoid contracting with two separate parties.

In 2014, the AIA released updated versions of its design/build family of AIA Contract Documents, which are primarily geared toward larger commercial construction projects. To better meet the needs of owners and design/builders for residential projects, the AIA set out to develop a document that streamlined the design/build process without losing the valuable legal protections that have made AIA Contract Documents the industry standard. The result? AIA Document A145–2015, Standard Form of Agreement for a One or Two Family Residential Project.

The new A145–2015 is the AIA’s first offering of a document specifically tailored to residential design/build projects. While A145–2015 will look familiar to anyone who has used A141–2014, the drafters of A145–2015 were able to shorten the document by half and limit its exhibits to one. This shortening of the document, along with other relevant revisions geared toward residential construction, makes it a more appropriate document for use by the typical residential owner and the contractors performing residential design/build services.

Michael Bell, AIA, a member of the AIA Documents Committee who assisted in the development of A145–2015, says, “A145–2015 is a lot shorter than the AIA’s standard design/build documents, reflecting the nature of the project, but maintains the predictability and consistency that comes with using AIA standard contracts.”

A145–2015 provides a simple process to guide the owner and design/builder from the initial meeting to develop the owner’s criteria for the project through execution of the Design/Build Amendment, which sets the contract sum for construction, to the final construction of the project. In addition, A145–2015 is meant to be flexible and offers the owner and design/builder the latitude to develop their own cost and fee structure.

Marika Snider, AIA, a member of the AIA Documents Committee and chair of the Small Projects Practitioners Advisory Group who assisted in the development of A145–2015, says, “This document helps take some of the risk out of this process as well as bringing up the possible points of conflict early during the signing-of-the-contract phase, rather than later after a conflict has arisen. This process helps to avoid conflicts by bringing out those ideas in the beginning.”

Contracts for residential design/build, however, offer some unique challenges. Many jurisdictions impose specific requirements for certain consumer protection language that must be included in contracts for residential construction. These provisions can range from language notifying the owner about how and why a mechanic’s lien may be filed on the owner’s property to notification of what specific warranties must be provided for the project. Often statutory language must be included, following specific rules regarding form and font. A145–2015 includes a number of fill points prompting the user to consider whether such provisions must be included, but users are cautioned to consult with knowledgeable legal counsel to ensure that their contract satisfies local requirements.

“This document includes fill points as prompts to help find some of the more common things that are required in many of the different states. The prompts should also encourage the design/builder to go and find out what the regulations are in their individual states, because consumer protection is something that is taken seriously, particularly when it deals with people’s homes,” says Snider