Content.

Synopsis

Purpose

Related documents

Changes from the previous edition

Dispute Resolution—Mediation and Arbitration

 

Synopsis.

AIA Document A104–2017 is a stand-alone agreement with its own internal general conditions and is intended for use on construction projects of limited scope and complexity. A104-2017 replaces AIA Document A107™-2007, Standard Form of Agreement Between Owner and Contractor for a Project of Limited Scope. It may be used for projects where payment is based on either a stipulated sum or the cost of the work plus a fee, with or without a guaranteed maximum price. Parties using AIA Document A104–2017 will also use A104 Exhibit A, Determination of the Cost of the Work, if using a cost-plus payment method. AIA Document B104™–2017, Standard Abbreviated Form of Agreement Between Owner and Architect, coordinates with A104–2017 and incorporates it by reference.

For use and execution of a document, see its instructions »

 

Purpose.

AIA Document A104–2017 establishes the agreement between an Owner and Contractor for construction projects of limited scope and complexity. A104-2017 is a stand-alone agreement that does not require the use of a separate general conditions document. A104–2017 may be used on projects where the basis of payment is a stipulated sum (fixed price) or cost of the work plus a fee, with or without a guaranteed maximum price. The Owner and Contractor are asked to select the payment method in the agreement using a checkbox. If either of the two cost-plus payment methods is selected, then the parties will complete, and incorporate into the agreement, Exhibit A, which provides the detail for the Cost of the Work. A104™–2017 replaces AIA Document A107™– 2007.

For more complex projects, parties should consider using AIA owner-contractor agreements A101®–2017, A102™–2017 or A103™–2017. These agreements are written for a stipulated sum, cost of the work with a guaranteed maximum price, and cost of the work without a guaranteed maximum price, respectively. Each of them incorporates by reference AIA Document A201®–2017, General Conditions of the Contract for Construction

For smaller and less complex projects, parties may wish to consider using AIA Document A105™–2017, Standard Short Form of Agreement Between Owner and Contractor.

 

AIA Document B104™-2017, Standard Abbreviated Form of Agreement Between Owner and Architect coordinates with A104-2017 and incorporates it by reference. If another owner-architect agreement is paired with A104–2017, the architect’s duties set forth in A104–2017 may require revision.

A104–2017 is used as one part of the Contract Documents that record the Contract for Construction between the Owner and Contractor. The other Contract Documents are Supplementary Conditions, Drawings, Specifications and Modifications. Although the AIA does not produce standard documents for Supplementary Conditions, Drawings or Specifications, a variety of model and guide documents are available, including AIA’s MASTERSPEC and AIA Document A503™–2017/2019, Guide for Supplementary Conditions.

If AIA Document A104–2017 is to be used on a project with AIA Document A401™–2017, Agreement Between Contractor and Subcontractor, appropriate modifications should be made with the assistance of legal and insurance counsel. Such modifications will be needed because A401–2017 incorporates by reference AIA Document A201–2017, General Conditions of the Contract for Construction, while A104–2017 contains its own general conditions.

 

Changes from the previous edition.

AIA Document A104–2017 revises AIA Document A107–2007 to parallel the 2017 revisions made in the following AIA Documents: A101–2017, Standard Form of Agreement Between Owner and Contractor where the Basis of Payment is a Stipulated Sum, A102–2017, Standard Form of Agreement Between Owner and Contractor where the Basis of Payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price, A103–2017, Standard Form of Agreement Between Owner and Contractor where the Basis of Payment is the Cost of the Work Plus a Fee without a Guaranteed Maximum Price, and A201–2017, General Conditions of the Contract for Construction. It incorporates alterations proposed by architects, contractors, owners, and professional consultants. Some of the significant differences in content between AIA Document A104–2017 and AIA Document A107–2007 are listed below.

Title. The document has been renumbered as AIA Document A104–2017 to clarify that it is coordinated for use with AIA Document B104™–2017 Standard Abbreviated Form of Agreement Between Owner and Architect. The title of the document has been changed to better reflect its intended use on a broad range of projects where an abbreviated document with incorporated general conditions is appropriate.

Article 2 – Date of Commencement and Substantial Completion

§ 2.1 The format for the date of commencement of the work has been changed to a checkbox allowing the parties to select either (1) the date of the Agreement, (2) the issuance of a notice to proceed (NTP) by the Owner, or (3) a different date as agreed by the parties. To the extent that the Owner needs additional time to file mortgages or security interests or delay the Project start for reasons other than the issuance of a NTP, the parties would select (and complete) option 3.

§ 2.3.1 A checkbox has been added so that the parties can select whether Substantial Completion of the entire Work will be achieved no later than a specified calendar date or within a certain number of days from the date of commencement

§ 2.3.2 This section has been added to allow for Substantial Completion of certain phases of the Project to be completed prior to the Substantial Completion date for the entire Work set forth in Section 2.3.1 (tiered Substantial Completion dates). This can be used when portions of the Work will be completed and occupied by the Owner prior to Substantial Completion of the entire Work

§ 2.3.3 Because liquidated damages are a function of the Contractor’s failure to achieve Substantial Completion within the Contract Time, this section has been added to cross-reference the fill point for liquidated damages in Article 3 (relating to adjustments in the Contract Sum).

Article 3 – Contract Sum

§ 3.4.3.6 This new provision has been added to make the document consistent with AIA Document A102–2017 and the long-standing principle that the Guaranteed Maximum Price includes costs attributable to further development of the Contract Documents to the extent that further development is consistent with the Contract Documents and does not include changes in scope, systems, kinds and quality of materials, finishes or equipment.

§ 3.4.3.7 This section has been added to make the document consistent with revisions to AIA Document A102–2017 and to recognize that any assumptions agreed-upon by the Owner and Contractor under Section 3.4.3.5 may require revisions to the Contract Documents. This language requires the Owner to authorize revisions to the Contract Documents that incorporate any agreed-upon assumptions upon which the Guaranteed Maximum Price is based.

§ 3.5 A fill-point has been included for the parties to specify a liquidated damages provision or amount. The parties are free to define liquidated damages in this section as they may mutually agree; however, consultation with legal counsel is encouraged

Article 6 – Enumeration of the Contract Documents

§ 6.1.7.1 This section has been included to allow the parties to incorporate certain optional documents as Contract Documents by checking the appropriate box. Note that AIA Documents E204™–2017, Sustainable Projects Exhibit, and any applicable Sustainability Plan may be incorporated as a Contract Document. These documents will be used where the Project is required to achieve a Sustainable Objective, as specified by the Owner, and will include key provisions applicable to the Owner-Contractor Agreement. For specifics about the use of E204–2017, please see the instructions accompanying the document.

Article – 7 General Provisions

§ 7.6 Similar to AIA Document A201–2017, this section requires the use of AIA Document E203™–2013, Building Information Modeling and Digital Data Exhibit for the development of protocols for the transmission of Instruments of Service or other data in digital form.

§ 7.7 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. This provision requires the use of AIA Document E203–2013 and AIA Document G202™–2013, Project Building Information Modeling Protocol Form, for the establishment of these protocols.

§ 7.9 This new provision requires that all notices under the Contract be in writing. Additionally, language has been included that allows the parties to provide notice through electronic means such as email. Notice of Claims may not be provided electronically and must be delivered to the designated representative of the party to whom the notice is addressed by certified or registered mail, or by courier providing proof of delivery.

§ 7.10 In a contract using a stipulated sum for the Contractor’s compensation, the Owner has agreed to pay a specific amount regardless of the cost incurred by the Contractor in the performance of the Work. However, when the Contractor’s compensation is based on Cost of the Work, if selected in this Agreement, the amount expended by the Contractor as a “Cost of the Work” has a direct economic consequence to the Owner. Therefore, the Owner has a heightened interest in the efficient and economical performance by the Contractor, and the Contractor has a consequent responsibility to manage expenditures on the Project in keeping with the Owner’s interests. This provision addresses those particular interests of the Owner in a cost plus contract, and the corollary obligations of the Contractor.

Article 8 – Owner

§ 8.1.1 Similar to A201–2017, the Contractor may request evidence that the Owner has made financial arrangements to fulfill its obligations under the Contract. The Contractor is not required to commence construction if it requests such evidence and the Owner fails to provide the evidence.

§ 8.3 Revisions to this section clarify that when the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents, the Owner may correct the Work and the Architect may withhold or nullify a Certificate for Payment to the extent reasonably necessary to reimburse the Owner for the cost of correction. If the Contractor disagrees with the withholding, it may make a Claim in accordance with Article 21.

Article 9 – Contractor

§ 9.4 This provision has been revised to require that material, equipment, and other special warranties (e.g. a twenty-year roof warranty) must be written in the name of the Owner or be transferable to the Owner and will commence in accordance with Section 15.6.3.

§ 9.9.3 Similar to A201–2017, this new provision recognizes that the Contractor may be required to hire design professionals to complete the Work where required by the Contract Documents. In that event, the Contractor is permitted to rely on the performance and design criteria provided by the Owner and Architect. The Contractor must perform the services with an appropriately licensed design professional

Article 12 – Construction by Owner or by Separate Contractors

§ 12.1 The term “Separate Contractor” has been defined in this section to mean other contractors retained by the Owner under separate agreements and is used as a defined term throughout the document

Article 13 – Changes in the Work

§ 13.1 To ensure consistency with the requirements of A201–2017, language has been included recognizing that the Contractor is required to proceed promptly with changes in the Work unless otherwise provided

§ 13.3 Revisions to this section clarify that the Contractor should not proceed with a minor change in the Work directed by the Architect if the Contractor believes that the change will affect the Contract Sum or Contract Time. The Contractor may not proceed with a minor change without giving notice that it believes a change in the Contract Sum or Contract Time is warranted to the Architect.

Article 15 – Payments and Completion

§ 15.1.1 This section has been modified to require that changes to the schedule of values must be submitted to the Architect and will be used as the basis for reviewing subsequent applications for payment

§ 15.2 Language regarding the preparation of a Control Estimate on projects where payment is based on the Cost of the Work plus Contractor’s Fee without a Guaranteed Maximum Price was previously included in Exhibit A, Determination of the Cost of the Work. This language has been moved to Article 15 because it was deemed out of place in Exhibit A. Exhibit A now includes only those provisions for determining the Cost of the Work

§ 15.3.1 This new provision is included to better describe the requirements of the Application for Payment.

§ 15.5.4 This new provision requires that the Contractor indemnify the Owner for any lien claim or other claim related to payment by a Subcontractor, provided the Owner has fulfilled its obligations under the Contract Documents.

§ 15.7.3.4 New language has been included stating that the making of final payment by the Owner does not constitute a waiver of claims arising from audits performed by the Owner after final payment, if permitted by the Contract Documents.

Article 17 – Insurance

The insurance section has been expanded and modified to track the insurance requirements set forth in the 2017 owner-contractor agreements. The AIA encourages you to discuss the insurance and bonds requirements of A104–2017 with your insurance broker and legal counsel, so that appropriate insurance can be put in place before the start of construction.

Article 19 – Miscellaneous Provisions

§ 19.4 In keeping with other AIA owner-contractor agreements, a fill point has been included to identify the owner’s representative.

§ 19.5 In keeping with other AIA owner-contractor agreements, a fill point has been included to identify the contractor’s representative.

Article 20 – Termination of the Contract

§ 20.3 This provision has been modified to establish a “termination fee” that will be agreed to by the parties and payable in the event the Owner terminates the Contractor for convenience. Additionally, revisions have been made to clarify that costs payable to the Contractor under a termination for convenience include costs attributable to terminating subcontracts.

Article 21 – Claims and Disputes

Several changes have been made to this Article. First, the section on “time limits on claims” has been moved to Article 21 from Article 19. Second, revisions clarify that claims occurring before conclusion of the corrections period are subject to a 21-day notice period and are also subject to initial decision by the Architect. Claims made after conclusion of the corrections period are not subject to the 21-day notice requirement and do not require a decision by the Architect. This change is meant to clarify that the reason for the 21 day notice period and decision by the Architect is to keep the Project moving without delay. This is not a necessity following conclusion of the corrections period.

§ 21.7 and § 21.9 These sections have been revised to clarify that consolidation and joinder decisions cannot be made at the sole discretion of the party seeking consolidation and joinder but, rather, must be made in accordance with the applicable arbitration rules.

§ 21.10 Language has been included, consistent with A201–2017, requiring the Contractor’s continuing performance pending resolution of a Claim.

Exhibit A – Determination of the Cost of the Work

Exhibit A, Determination of the Cost of the Work has been modified to conform to changes made in AIA Documents A102–2017 and A103–2017. As previously stated with respect to Section 15.2, language regarding creation and use of the Control Estimate has been deleted and included in the main text of AIA Document A104–2017. Other changes to Exhibit A are described below.

Article A.1 – Cost to be Reimbursed

General changes have been made throughout Articles A.1 and A.2 to clarify the meaning of provisions relating to costs to be reimbursed. Changes discussed below are limited to those sections where changes will affect the category of cost allowable under the provision.

§ A.1.2.5 This new section clarifies that if the parties have agreed to a schedule of labor rates, those labor rates will remain unchanged for the duration of the Agreement unless the parties execute a Modification.

§ A.1.6.1.2 This new section has been included to allow for the cost of insurance through a captive insurer owned or controlled by the Contractor to be included in the Cost of the Work, with the Owner’ prior approval.

§ A.1.2.2.1 A fill-point has been included in this section to allow the parties to provide for an agreement as to the allowable activities performed and percentage of time spent on activities related to the Work by the Contractor’s supervisory and administrative personnel performing Work at sites other than the Project site.

Article A.2 – Costs Not to be Reimbursed

§ A.2.1.2 Language formerly appearing in Section A.1.2.5, allowing the Contractor to include bonuses, profit sharing, and other incentive compensation of Contractor’s personnel in the Cost of the Work, has been moved to Section A.2.1.2 (costs not to be reimbursed). Section A.2.1.2 will allow these costs to be included in the Cost of the Work if approved in advance by the Owner. This is not a change to the operation of the provision; it clarifies that these costs may only be included in the Cost of the Work if approved by the Owner.

Article A.4 – Subcontracts and Other Agreements

§ A.4.1 This section has been revised to clarify that the Owner is not the party responsible for selecting which Subcontractor bids will be accepted. Rather, the Contractor is responsible for determining which Subcontractor bids will be accepted and the Owner, in consultation with the Architect, may choose to reject Subcontractors proposed by the Contractor.

 

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.