Which AIA agreement should architects select for specialized consultants?
When it comes to consultants for special services, what AIA Contract Document is the right one to use?
For many architects being introduced to contracts, B101-2017 is the foundational owner-architect agreement and the first tool an architect should carry in his or her contracts tool belt. While it is important for architects to always execute a written agreement with an owner, it is equally important for architects to execute written agreements with their consultants. Enter C401-2017, the Standard Form of Agreement Between Architect and Consultant, the second tool for the contracts tool belt.
As projects become more complicated—and as consultant expertise becomes specialized beyond the standard structural, mechanical, and electrical design—not all consultants fit neatly under the umbrella of C401. This is especially true for consultants involved in only one project phase or those acting as a direct arm of the architect’s design team, such as a specifications writer or hardware consultant. The agreements for these consultants don’t necessarily need to tie back to terms in the prime agreement between the owner and architect. In such cases, architects should select C402-2018, the Standard Form of Agreement Between Architect and Consultant for Special Services.
Though shorter than C401, C402 is still a robust agreement with sections that offer protections for both the architect and consultant: definition of scope, responsibilities of each party, copyrights, claims and disputes, termination, and compensation. C402 is appropriate for consultants who provide limited scope or specialized services that don’t cross over all typical phases of design, such as consultants providing renderings, planning services, feasibility studies, spec writing services, hardware schedules, elevator analysis, and security design. When an architect must tie a consultant to the prime agreement, or when consultants will be involved in a project from design through construction, C401 is appropriate. The C401 is also intended for consultants who provide the usual and customary mechanical, electrical, and structural engineering services or for consultants who engage their own subconsultants.
C402 has been available for many years as C727-1992. In 2018, it was renumbered to reflect its status as a sub-agreement within the conventional family of AIA documents. The layout and language of C402 incorporates key organization and content from B101 and C401. This is evident in the table of articles, as well as sections that establish protocols for transmitting and using digital data and those that define the consultant’s additional services.
What separates C401 and C402?
C402 differs from C401 in several ways and is not a short or abbreviated version of C401. For one, C402 maintains the approach of C727 by not referring to the prime agreement and requiring the parties to define or attach a description of the consultant’s scope of services.
A second way in which C402 differs is how it maintains C727’s no “flow down” approach to most areas of the agreement. However, with the 2018 update, limited flow down from the prime agreement has been added to two sections of C402: copyrights and licenses, and payment terms. In B101, the architect is required to flow down licensing provisions to all consultants, thereby granting the owner a nonexclusive license to use the consultant’s instruments of service for constructing, using, maintaining, altering, and adding to the project. The license permits the owner to authorize all others performing services or construction for the project to reproduce applicable portions of the instruments of service. To avoid the architect’s breach of his or her contract with the owner, C402 flows down this license requirement to consultants. This way, consultants also grant the owner a nonexclusive license to use their instruments of service. Payment language was also updated to align more closely with C401’s concept that payments will be made to the consultant promptly after the architect receives payment from the owner.
Another key difference between C401 and C402 lies in the standard of care. While C402 contains updated language to align with the standard of care defined in B101, C402 does not add the enhanced language of C401, which states that, if the standard of care in the prime agreement differs from that in C401, the consultant shall follow the prime agreement’s standard of care. This element further reinforces the limited flow down of the C402 agreement.
An update to C402’s language for dispute resolution added mediation as a condition precedent to binding dispute resolution. For binding dispute resolution, the parties can now select from arbitration, litigation, or another method—like B101. C727 defaulted to arbitration as the only form of dispute resolution. C402 follows the original intent of C727 and does not tie the consultant to the dispute resolution of the prime agreement.
When selecting the form of any contract, it is important to understand all options and choose the agreement that best fits the project’s needs and goals. With C402, architects now have a third useful tool to add to their contract tool belt.
Tara Myers, AIA, is a principal at Nashville-based Earl Swensson Associates and a member of AIA’s Contract Documents Committee.