When choosing between the American Institute of Architects (AIA) and ConsensusDocs design-build contract documents, owners and contractors must understand how each will yield vastly different results on critical issues such as managing timely and sufficient design services. Both ConsensusDocs and the AIA publish coordinated families of standard design-build contract documents. This article explores why ConsensusDocs offers more balanced provisions that better protect design-builders and owners, making it a more favorable choice for managing design services effectively.
Design-build has become well-established as a project delivery method. While AIA standard documents are more commonly used for design-bid-build projects, the ConsensusDocs contract documents offer a more equitable approach to managing design-build services. Collaboration and communication are keys to success. ConsensusDocs is known to be stronger in these attributes, which may be one of the reasons that ConsensusDocs is a more popular choice for design-build (as well as CM At-Risk and IPD) projects.
One Key Difference
One significant difference between AIA’s and ConsensusDocs’ design-build documents is the ability of the design-builder to manage the architect’s development of timely and accurate design documents. The AIA documents tend to protect architects at the expense of contractors, while ConsensusDocs provides more balanced terms, as further illustrated below.
The AIA B143 Agreement, which is an agreement for a design-builder to procure design services from an architect, provides the following (emphasis added):
§ 11.11.3 The Design-Builder shall not withhold amounts from the Architect’s compensation to impose a penalty or liquidated damages on the Architect or to offset sums requested by or paid to contractors for the cost of changes in the Work unless the Architect agrees or has been found liable for the amounts in a binding dispute resolution proceeding.
A design-builder is accustomed to back-charging a subcontractor and withhold payment for deficient or late work. Such work causes rework and delays. However, the AIA contract language insulates an architect from such treatment. Ironically, if a general contractor or subcontractor is completing design services under delegated design, the AIA design-build nor design-bid-build documents do not insulate contractors from such back charges. Rather, the architect is once again protected and can entirely rely upon the accuracy of such design services and associated design work product.
Contrast this with the equivalent ConsensusDocs 420 standard agreement between a design-builder and design professional, which states the following:
§ 6.3.5 Should Design Professional or its Consultants or subcontractors cause damage to the Project,or fail to perform or otherwise be in default under the terms of this Agreement, Design-Builder shall have the right to withhold from any payment due or to become due, or otherwise be reimbursed for, an amount sufficient to protect Owner and Design-Builder from any loss that may result. Payment of the amount withheld shall be made when the grounds for the withholding have been removed.
The results under a ConsensusDocs 420 versus an AIA B143 are very different. While the AIA design-build documents protect architects, this comes at the owners and design-builders' detriment. ConsensusDocs gives broad rights to owners and design-builders to withhold payment for faulty or delayed design services.
Those seeking access to the ConsensusDocs design-build-only annual subscription can get an in-depth description here: https://www.consensusdocs.org/package/design-builder-package/. The subscription includes all 23 design-build contract documents published specifically for the design-build project delivery method and 55 total contract documents.