of the Owner under AIA’s 1997 Owner-Architect Agreement and the Construction
Lopsided Construction Team
The Owner Doesn't Always Know What to Do
O'Leary, FAIA, MRIAI
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of the Team
In the usual construction contract, there are three essential parties, often
spoken of as a team: an owner, a constructor, and a designer. The AIA standard
contract forms anticipate the participation of these three entities, with the
architect coordinating the design professionals and administering the
On paper, it looks like it ought to work all right and produce satisfactory
construction results without a hitch. The concept of a "team,"
however, is sometimes an erroneous or inappropriate metaphor as the three
so-called team members, most of the time, are combined on a temporary ad hoc
basis, never having worked together on a previous project. For the team to
function properly each of its members have to know how to do its part. All three
must be aware of the contract procedures and the customary construction industry
understandings and practices.
The assumption is made that each of the three parties knows its job and is
properly prepared to carry out its functions in accordance with the written
agreements. This idealistic assumption is not always entirely correct.
The Team Is Established by the Architectural Agreement and the Construction
The three main parties comprising the usual team are linked by means of two
separate, though usually coordinated, contracts:
• the owner-architect agreement, and
• the owner-contractor contract.
Only the owner is signatory to both agreements. The success of the venture is
highly dependent on all three parties carrying out their duties and
responsibilities completely and effectively.
Contractors and architects are normally a continuous and permanent part of
the construction industry while some owners are not.
Contractors. Carefully selected contracting firms generally know what
they are doing since they are in the construction milieu all of the time, 365
days a year. They are licensed by the state in which they do business and they
compete keenly with other competent contractors. Many members of their office
organizations are graduates in various contracting, engineering, and business
disciplines and most of them participate in seminars offered by their
contracting associations. They usually read the industry press. Most of their
field personnel are skilled in their trades and work under experienced
supervisors. Their work in the field is performed under the scrutiny of building
inspectors, engineers, and architects. Contracting is a full time job.
Architects. Similarly, architectural firms are all in the hands of
educated and licensed architects and engineers. They constantly participate in
continuing education activities and attend seminars for improving and expanding
their professional skills, understanding, and awareness. They read the
professional press. They practice their professions continuously as a full time
activity. It is a serious dedicated life's work.
Owners Are All Different
The third member of the team is the owner, arguably the most important and
indispensable member, without whom there would be no project or even a need for
the team. Unfortunately, owners are the potential weak link in the construction
process, as they do not always know what to do, or when, or how to do it. They
are not uniform in their capabilities.
Some are well qualified, understand what they are doing, and conduct themselves
appropriately. This is particularly true of organizations that have full time
facilities departments staffed with qualified and experienced construction
professionals and administrators. Some owners are highly experienced in
construction procedures having been through the process repeatedly and are
almost an integral part of the construction industry.
But other owners are only in the role on rare occasions or perhaps only once in
a lifetime. For them each of the owner's duties and responsibilities is a unique
experience to be puzzled over and accepted, or possibly glossed over, or even
rejected. Neophyte owners usually rely heavily on their architects to keep them
apprised of appropriate responses but some do not always respond to valid
professional advice. Some obtain their guidance from well-meaning but often
ill-informed friends or colleagues. When the inexperienced owner conducts itself
in an improper, bizarre, or cavalier manner, the system breaks down. The team
loses a key player. This normally produces unsatisfactory results including
inappropriate buildings, uncontrolled costs, runaway construction time, and
unnecessary controversy. It places an unexpected and unfair burden on the
contractor and the architect.
All parties to contracts are expected to deal with each other fairly and
honestly and to refrain from interfering with the other's performance. In
addition to these implied covenants of good faith and fair dealing, the AIA
agreement forms assign specific duties to the owner, contractor, and architect.
The Owner's Duties Under the Architectural Agreement
As a matter of client orientation at the very beginning of the owner-architect
relationship, the architect should undertake to explain the owner's duties and
responsibilities required by the agreement. These will be found in B-141-1997.
• The owner is required to provide full information in a timely manner
regarding the requirements and limitations on the project. (B141-1997, 18.104.22.168)
Initially, this information should be stated in the agreement in Article 1.1.
The owner, at the time of executing the agreement, will have furnished the
project parameters including the size and location of the project (22.214.171.124), the
program (126.96.36.199), the legal description and restrictions of the site (188.8.131.52),
the overall budget and building cost budget (184.108.40.206), time limitations
(220.127.116.11), the proposed construction delivery method for the project (18.104.22.168),
and any other parameters that may be applicable to the project.
• The owner must also furnish, within 15 days after the architect's written
request, information needed for evaluation or enforcement of the architect's
lien rights. (22.214.171.124)
• The owner must provide the architect with a program setting forth all of the
project requirements and objectives. (126.96.36.199 and 188.8.131.52))
• The owner must establish and periodically update the overall budget as well
as the budget for the cost of the work including related costs, and reasonable
contingencies. The owner cannot make significant changes in the budgets or
contingencies without the architect's agreement to a corresponding change in the
project scope and quality. (184.108.40.206)
• The owner is required to designate a representative authorized to act for
the owner. (220.127.116.11)
• The owner must review documents promptly and make decisions in a timely
• The owner must provide surveys showing specified physical characteristics of
the land as well as all pertinent legal limitations, zoning, and all information
related to utilities available to the site. (18.104.22.168)
• If the architect requests it, the owner must furnish the services of
geotechnical engineers to determine the site characteristics relating to
subsurface conditions. (22.214.171.124)
• When requested by the architect, the owner must furnish the services of
specialized engineers and other consultants reasonably required by the scope and
nature of the project. (126.96.36.199)
• The owner is required to provide all necessary physical testing and analysis
required by law or the contract documents. (188.8.131.52)
• The owner must furnish all legal, accounting, auditing, and insurance
counselling services as necessary at any time for the project. (184.108.40.206)
• The owner must give prompt written notice to the architect whenever aware of
any fault or defect in the project or the contract documents. (220.127.116.11)
• Should the owner require any certifications of the architect, the proposed
language and form must be submitted to the architect at least 14 days in advance
of their execution. (18.104.22.168)
• The owner must make all payments to the architect as required by the
• The primary responsibility for making applications for governmental approval
rests with the owner. The architect is required to assist the owner in this
• The owner is required to cooperate with the architect's recommendations to
adjust the project's size, quality, or budget in the effort to comply with the
owner's budget. (22.214.171.124)
• The owner is primarily responsible for obtaining competitive bids or
negotiated proposals, awarding and preparing construction contracts,
establishing a list of prospective bidders and in evaluating bids and proposals.
The architect is obligated to assist the owner in these activities. (2.5.1,
2.5.2, and 2.5.3)
The Owner's Duties Under the Construction Contract
Owners who are not fully aware of the contractor's and architect's expectations
during the construction period, will often be found wanting. An architect who
realizes that the client is deficient in the knowledge necessary to perform the
owner's further obligations should, at the very least, advise the client to
study the general conditions of the construction contract and should warn of the
possible consequences of inadequate attention to their requirements. These will
be found in A201-1997.
• If the contractor requests it in writing, the owner is required to disclose
all the property information needed to evaluate or enforce lien rights.
• Upon the written request of the contractor at any time, the owner must
furnish to the contractor reasonable evidence that sufficient financial
arrangements have been made to fulfil the owner's obligations under the
• The owner must furnish to the contractor surveys of the site showing
physical characteristics, legal limitations, utility locations, and the legal
• The owner must pay the fees for all permits, easements, approvals,
assessments, and charges that are not the contractor's responsibility under the
contract documents. (2.2.2)
• The owner must provide all information or services required by the contract
documents or requested by the contractor in writing with reasonable promptness
to avoid any construction delay. (2.2.4)
• Unless the contract documents provide otherwise, the owner must pay for all
copies of the contract drawings and specifications reasonably needed by the
contractor for execution of the work. (2.2.5)
• The owner is also obligated to pay all sums when due under A201-1997,
Article 9 and as required by the construction agreement. (A101-1997, Article 5
or A111, Article 12)
• The owner is obligated to carry property insurance to protect the
contractor's as well as its own interests during the construction period.
(A201-1997, Article 11)
• In addition, the owner has a number of specified duties and obligations
incidental to the existence of separate contractors or work being done with the
owner's own forces. See relevant provisions in General Conditions, A201-1997.
Saving the Team
If the owner is not in a position to handle the normally required and expected
owner's obligations, the architect should not sit idly by and participate on a
lopsided team. The best move is to advise the owner to retain a competent entity
to assist with provision of these essential services. This could be accomplished
by the owner's engaging a construction manager or possibly by extending the
architect's scope of service to include these additional functions.
article is based on a similar article that first appeared in Design Cost Data in
the Sept/Oct 1998 issue.
For the purpose of this article, assume that the following agreements are in use:
Between Owner and Architect:
Standard Form of Agreement Between Owner and Architect with Standard Form of Architect's Services, AIA Document B141-1997.
Between Owner and Contractor:
Standard Form of Agreement Between Owner and Contractor where the basis of payment is a Stipulated Sum, AIA Document A101-1997,
Standard Form of Agreement Between Owner and Contractor where the basis of payment is the Cost of the Work Plus a Fee with a Negotiated Guaranteed Maximum Price, AIA Document A111-1997,
General Conditions of the Contract for Construction, AIA Document A201-1997.
Guide to Successful Construction: Effective Contract Administration” by Arthur
F. O’Leary, FAIA, MRIAI or “Construction Nightmare Jobs From Hell & How
To Avoid Them” by Arthur F. O’Leary and James Acret are available from bookworkz.com
or call DCD at 800-533-5680.
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