Content.
Changes from the previous edition
Dispute Resolution—Mediation and Arbitration
Synopsis.
AIA Document C401–2017 is a standard form of agreement between the architect and the consultant providing services to the architect. AIA Document C401–2017 is suitable for use with all types of consultants, including consulting architects. This document may be used with a variety of compensation methods. C401–2017 assumes and incorporates by reference a preexisting owner/architect agreement known as the “prime agreement” and “flows down” the provisions of the prime agreement. For use and execution of a document, see its instructions »
Purpose.
AIA Document C401–2017 is a standard form of agreement to be used by the Architect and the Consultant providing services to the Architect to establish their responsibilities to each other and their mutual rights under the Agreement. C401–2017 is most often used to provide usual and customary mechanical, electrical and structural engineering services to the Architect. C401 has been developed, however, to be suitable for use with all types of Consultants, including consulting architects. This document may be used with a variety of compensation methods.
Related documents.
C401–2017 incorporates by reference a pre-existing Owner-Architect Agreement known as the Prime Agreement. AIA Documents B101™–2017, Agreement Between Owner and Architect, and B103™–2017, Agreement Between Owner and Architect for a Large or Complex Project, are the agreements most frequently used to establish the Prime Agreement. B104™–2017, Agreement Between Owner and Architect for a Project of Limited Scope, B105™–2017, Agreement Between Owner and Architect for a Residential or Small Commercial Project, or B152™–2019, Agreement Between Owner and Architect for Architectural Interior Design Services, may also serve as the Prime Agreement.
Changes from the previous edition.
AIA Document C401–2017 contains a number of changes from AIA Document C401–2007. Many of the changes were made in order to be consistent with changes made in AIA Documents B101–2017, while other changes focus on fostering clarity in the Owner-Consultant Agreement. Described below are highlights of major changes in C401–2017, Standard Form of Agreement Between Architect and Consultant.
Article 1 – General Provisions
§ 1.10 Use of Digital Data. This section requires the development of protocols for the transmission of Instruments of Service or other data in digital form.
§ 1.10.1 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.
Article 8 – Claims and Disputes
§ 8.1.2 Consultant’s Indemnity Obligation
New language has been added to clearly state that the Consultant’s duty to indemnify the Architect does not include the additional duty to defend the Architect, which was the intended meaning of C401–2007.
§ 8.1.3 Architect’s Indemnity Obligation. New language has been added to clearly state that the Architect’s duty to indemnify the Consultant does not include the additional duty to defend the Consultant, which was the intended meaning of C401–2007.
§ 8.2 – 8.4 Mediation and Binding Dispute Resolution. Section 8.2 has been edited to clarify the applicable dispute resolution processes if a claim between the Architect and Consultant is either unrelated to a dispute between the Architect and the Owner or the Consultant is legally precluded from being a party to the binding dispute resolution process required in the Prime Agreement. C401–2007 required the Architect and Consultant to resolve such claims by first proceeding to mediation in accordance with the mediation requirements set forth in the Prime Agreement. If the claim was not resolved via mediation, the Architect and Consultant were then required to proceed to the binding dispute resolution process selected in C401–2007. If the parties selected arbitration, the arbitration was to be held in accordance with the requirements set forth in the Prime Agreement. C401–2017 no longer references back to the Prime Agreement for the mediation and arbitration requirements and instead separately states those requirements in the Architect-Consultant Agreement.
Article 9 – Termination or Suspension
§ 9.1 Termination and Licensing Fees
§ 9.1.1.1 A fill-point has been added for the parties to identify the termination fee, if any, that the Architect would pay to the Consultant in the event of a termination not due to the fault of the Consultant (e.g. termination by the Architect for its convenience or if the Consultant terminates because of an extended suspension of the Project).
§ 9.1.1.2 A fill- point has been added for the parties to identify the licensing fee, if any, that the Architect would pay to the Consultant in the event of a termination not due to the fault of the Consultant (e.g. termination by the Architect for its convenience or if the Consultant terminates because of an extended suspension of the Project) if the Architect intends to continue using the Consultant’s Instruments of Service on the Project.
§ 9.1.2.1 A fill-point has been added for the parties to identify the termination fee, if any, that the Architect would pay to the Consultant in the event the Owner terminates the Prime Agreement. The termination fee is contingent on the Architect’s entitlement to, and receipt of, a termination fee from the Owner.
§ 9.1.2.2 A fill-point has been added for the parties to identify the licensing fee, if any, that the Architect would pay to the Consultant in the event the Owner terminates the Prime Agreement and the Owner intends to continue using the Consultant’s Instruments of Service. The licensing fee is contingent on the Architect’s entitlement to, and receipt of, a licensing fee from the Owner.
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.