05/20/2019 by J. Brandon Sieg
Various construction-industry organizations, such as the AIA, DBIA, and EJCDC, offer coordinated families of contract documents. Because every project is unique, those documents anticipate customization by providing blank spaces in certain terms. Using the AIA family of documents as an example, the very first page of B101-2017, Standard Form of Agreement Between Owner and Architect, includes blank spaces to identify the date the contract is entered and to identify the contracting parties. Those blanks are routinely filled in, but others, found later in the document, are not. The following are a few examples about why you, as an architect or engineer, should consider filling in the blanks.
First, there are blank spaces to identify various consultants. See, § 1.1.11. If specific consultants have already been identified, then these spaces are often filled in before execution of the agreement. But when the A/E’s scope does not include professional services in those disciplines, the blank spaces are sometimes left empty or deleted. That approach could be a missed opportunity for the A/E to clarify its scope of services by writing: “not provided by Architect.”
A similar example is found in the Supplemental Services of § 4.1.1, which explicitly proposes assigning responsibility as: “Architect, Owner, or not provided.” If the Owner has not requested these Supplemental Services, then simply writing “not provided” in each of the blanks will again help to clarify your scope of services. Although this might intuitively seem unnecessary, why take chances by leaving the space empty (or by deleting § 4.1.1 all together)?
Other frequently ignored “blanks” are found in § 4.2.3 and § 4.2.5. An A/E’s fee calculation logically relies on an assumption about what amount of time and effort the Construction Administration phase services will require. Yet A/Es sometimes overlook this opportunity to state the anticipated number of site visits, shop drawing reviews, etc. upon which their fee relies. Filling in these blanks at the beginning of a project can help support a claim for Additional Services payments at the end of a project.
A/Es often leave blank spaces in § 9.7, governing a termination fee and a licensing fee. Perhaps A/Es hope these blank spaces will convey confidence that the project will be a success. But if your contract is terminated, then you might regret leaving these blank spaces empty. Particularly if the Owner wants to hire a different architect to complete your design!
It is surprising how often A/Es leave blank spaces in Article 11, governing compensation. For example, if a project is terminated before construction, having previously assigned percentages of compensation to different phases of services in § 11.5 will be useful to explain how much fee you are owed for services that were performed. And when both § 11.3 and § 11.7 are left empty, it can be more challenging to support your demand for payment of Additional Services.
Article 12 provides one of the most significant blanks in the entire B101: a space for you (or the Owner) to list any additional terms and conditions. This is a space where you should carefully consider anything that might have been filled in by the Owner. You might be surprised by the way Article 12 can modify terms found earlier in the document, even when the language of earlier terms was not edited.
At the end of the B101, § 13.2 provides blank spaces where you can reference other documents to be included as part of the contract. A/Es commonly fill in this blank to reference their initial proposal letter, which can be helpful if the proposal included unique terms not otherwise addressed by the B101. Carefully consider any additional forms that the Owner might have identified in this blank space.
It is important to consider cross-references between documents of the same family because cross-referenced documents might contain additional blank spaces. For example, your B101 agreement might incorporate E204’s terms about the Owner’s Sustainable Objectives. Section 2.9.2 of the E204 provides blanks for you to specify more limits on your services, which support claiming additional services if you must exceed those limits. Note also that it is important to consistently use the same edition for your family of documents—mixing the 2017 AIA documents with 2007-edition documents could undermine coordination of terms.
The above examples show how blank spaces in AIA documents accommodate project-specific terms and information. You should carefully consider each term of any contract you enter, even if the term is a blank space. An attorney familiar with the AIA family of documents can help you understand not only the consequences of editing form language, but also the possible consequences of failing to fill in the blanks.
About the Author:
Brandon has broad experience representing professionals. The majority of Brandon’s practice is devoted to defending architects, engineers, and accountants in malpractice litigation before Virginia’s state and federal trial courts. In addition to his litigation and trial experience, Brandon also advises and represents professionals in other matters affecting their business such as licensure issues, copyright issues, defense of enforcement actions by government agencies(including Virginia’s Department of Professional Regulation and the PCAOB), and negotiating professional services agreements. For more information, please contact Brandon at firstname.lastname@example.org.