Summary: B133™–2019, Standard Form of Agreement Between Owner and Architect, Construction Manager as Constructor Edition

Content.

Synopsis

Purpose

Related documents

Changes from the previous edition

Dispute Resolution—Mediation and Arbitration

 

Synopsis.

AIA Document B133–2019 is a standard form of agreement between Owner and Architect intended for use on projects where an Owner employs a Construction Manager to act as an adviser during the preconstruction phase. 

At a time to be mutually agreed upon by the Owner and the Construction Manager, and in consultation with the Architect, the Construction Manager prepares a Guaranteed Maximum Price proposal or Control Estimate, as applicable, for the Owner’s review and acceptance. Thereafter, the Construction Manager constructs the Project on a Cost of the Work Plus a Fee basis, either with or without a Guaranteed Maximum Price, and the Architect provides contract administration services during the construction phase. 

B133–2019 assumes that the Construction Manager will provide cost estimates and schedules for the Project. B133–2019 is intended to be used with AIA Document A201®–2017, General Conditions of the Contract for Construction, which it incorporates by reference and either A133™–2019, Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price or A134™–2019, Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee without a Guaranteed Maximum Price. For use and execution of a document, see its instructions »

 

Purpose.

AIA Document B133–2019 is a standard form of agreement between Owner and Architect intended for use on projects where an Owner employs a Construction Manager to act as an adviser during the preconstruction phase. At a time to be mutually agreed upon by the Owner and the Construction Manager, and in consultation with the Architect, the Construction Manager prepares a Guaranteed Maximum Price proposal or Control Estimate, as applicable, for the Owner’s review and acceptance. Thereafter, the Construction Manager constructs the Project on a Cost of the Work Plus a Fee basis, either with or without a Guaranteed Maximum Price, and the Architect provides contract administration services during the construction phase. 

In B133–2019, the Architect does not prepare cost estimates, but agrees to design the Project to meet the Owner’s budget for the Cost of the Work at the conclusion of the Design Development Phase Services. B133–2019 assumes that the Construction Manager will provide cost estimates and schedules for the Project.

 

B133–2019 is intended to be used with AIA Document A201–2017, General Conditions of the Contract for Construction, which it incorporates by reference, and either A133–2019, Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price or A134–2019, Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee without a Guaranteed Maximum Price. 

Before transmitting Instruments of Service or other information in digital form, parties should establish protocols for that transmission and may use AIA Document E203™–2013 for that purpose. If the Owner intends to pursue a Sustainable Objective, the parties should identify the Sustainable Objective in B133 and use AIA Document E234™–2019, Sustainable Projects Exhibit, Construction Manager as Constructor Edition, to establish the process for creating a Sustainability Plan that will define the parties’ responsibilities for pursuing the Sustainable Objective.  Additionally, the AIA publishes AIA Document B503™, Guide for Amendments to AIA Owner-Architect Agreements, which discusses a number of topics common to Owner-Architect relationships and provides model language.

 

Changes from the previous edition.

AIA Document B133–2019 contains a number of significant format and content changes from B133–2014. A key formatting change between B133–2019 and B133–2014 is that B133-2019 reformats the Additional Services article. B133–2014 included two types of Additional Services: 1) Additional Services that were identified and contracted for at the time the Agreement was executed, and 2) Additional Services that arose as the project proceeded. To avoid the potential confusion caused by having two types of Additional Services, B133–2019 has re-categorized the first type of Additional Services as Supplemental Services. Accordingly, in B133–2019, Supplemental Services refers to services that are not included as Basic Services but that are identified as the Architect’s responsibility at the time the Agreement is executed. Additional Services now refer only to those services that may arise as the Project proceeds.  

There are many other changes to foster clarity in the Owner-Architect agreement as well. Described below are highlights of major changes in B133–2019, Standard Form of Agreement Between Owner and Architect for a Complex Project.

Article 1 – Initial Information

§ 1.1.7 Sustainable Objective. Sustainable design and construction continues to rapidly evolve as owners are increasingly interested in incorporating sustainable features into projects. B133–2019 addresses current industry practices relating to sustainable design. Section 1.1.7 requires the Owner to identify any anticipated Sustainable Objective it may have for the Project. The Sustainable Objective is the Owner’s goal of incorporating Sustainable Measures into the design, construction, maintenance and operations of the Project to achieve a Sustainability Certification or other benefit to the environment, to enhance the health and well-being of building occupants, or to improve energy efficiency. If the Owner identifies a Sustainable Objective, the parties will incorporate AIA Document E234–2019, Sustainable Projects Exhibit, Construction Manager as Constructor Edition, into the Agreement to establish a process for creating a Sustainability Plan that will clearly define the parties’ responsibilities in terms of pursuing the Sustainable Objective. For more information on participating on a project with a Sustainable Objective, please see AIA Document D503™, Guide for Sustainable Projects

§ 1.3 Use of Digital Data This section requires the development of protocols for the transmission of Instruments of Service or other data in digital form through the use of AIA Document E203™–2013, Building Information Modeling and Digital Data Exhibit.

§ 1.3.1 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. For more information on using the AIA’s Digital Practice Documents, including E203–2013 and G202–2013, please see AIA’s Guide, Instructions and Commentary to the 2013 AIA Digital Practice Documents.

Article 5 – Owner’s Responsibilities

§ 5.13 Direct Communications. New language has been added clarifying that the Architect must be directly involved in any communications that relate to or affect the Architect’s services or professional responsibilities on the Project. To the extent direct communications between the Owner and Construction Manager otherwise occur, the Owner is required to subsequently notify the Architect as to the substance of any such communications relating to the Project.

Article 8 – Miscellaneous Provisions

§ 8.1.3 Architect’s Indemnity Obligation. New language has been added to clearly state that the Architect’s duty to indemnify the Owner does not include the additional duty to defend the Owner, which was the intended meaning of B133–2014.

Article 9 – Termination or Suspension

§ 9.6 Costs Attributable to Termination. This provision has been revised to clarify that costs payable to the Architect under a termination for convenience include costs attributable to the Architect’s termination of consultant agreements.

§ 9.7 Termination Fee. A fill-point has been added for the parties to identify the termination fee that the Owner would pay to the Architect in the event of a termination for convenience or if the Architect terminates because of an extended suspension of the Project.

§ 9.8 One-year Termination. A provision was added that terminates the Agreement one year from the date of Substantial Completion, unless otherwise stated in the Agreement. There are a number of provisions throughout the Agreement, such as Article 7 Copyrights and Licenses, where the terms and conditions will survive Termination of the Agreement.

Article 11 – Compensation

§ 11.1 Compensation for Basic Services. Fill points have been added for two of the more popular methods for compensating Architects for Basic Services: Stipulated Sum and a Percentage Basis. Section 11.1 also includes a space for users to insert another compensation method, such as hourly billing rates or a multiple of direct salary expense, if the parties so choose.

§ 11.6 Calculation of Progress Payments For Percentage Basis Compensation. Language has been added to clarify how progress payments to the Architect are calculated when the parties have chosen a percentage basis as the method of compensation for the Architect’s Basic Services. Progress payments are calculated by applying the percentages set forth in Article 11 to the Owner’s most recent budget for the Cost of the Work. Section 5.3 requires the Owner to update its budget for the Cost of the Work as part of its budget for the Project throughout the course of the Project.

Section 11.6 also clarifies that once a progress payment is made, it shall not retroactively be adjusted based on subsequent increases or decreases to the Owner’s budget for the Cost of the Work.

 

Dispute Resolution—Mediation and Arbitration.

This document contains provisions for mediation and arbitration of claims and disputes. Mediation is a non-binding process, but is mandatory under the terms of this agreement. Arbitration may be mandatory under the terms of this agreement. Arbitration is binding in most states and under the Federal Arbitration Act. In a minority of states, arbitration provisions relating to future disputes are not enforceable but the parties may agree to arbitrate after the dispute arises. Even in those states, under certain circumstances (for example, in a transaction involving interstate commerce), arbitration provisions may be enforceable under the Federal Arbitration Act.

The AIA does not administer dispute resolution processes. To submit disputes to mediation or arbitration or to obtain copies of the applicable mediation or arbitration rules, contact the American Arbitration Association at (800) 778-7879 or visit the website at adr.org.

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