Turning now to the more important changes in the agreement between the architect and owner, and leaving aside (until part two of this discussion) the architect as contract administrator in the B201 document, the major changes are associated with:
Architect standard of care Architect insurance requirements Environmentally responsible design Copyright and licensing the architect’s plans as instruments of service Dispute resolution direction change Given space limitations, I will discuss the standard of care, insurance and environmental design issues.
The 2007 version associated with the architect’s standard of care in Section 2.2 now limits the standard to skill and care ordinarily provided by architects practicing in the same or similar locality or same or similar circumstances. The locality and/or circumstance limitations were not in the 1997 edition. From a legal risk standpoint, the architect should consider use of this provision from the later edition, since the prior 1997 edition had possibly a broader standard or reference area when considering what the appropriate standard of care to a particular dispute should be.
Section 2.5 in the 2007 edition contains a requirement that the architect shall maintain insurance as identified in the agreement. The 1997 edition did not have such a requirement. Architects probably would like to be free from this requirement.
Comparing these two concepts illustrates decision points for the architect owner. Balancing the risks involved, what is more important, a broader standard of care but no requirement to buy insurance, or a narrower standard of care but a requirement to buy insurance. Obviously, another approach is to use one of the editions and revise it according to the architect owner’s own preference.
The provisions in 3251 of the 2007 edition appear to correspond to requests in the construction industry that architects as professionals be up to date on environmental issues as such issues are now becoming more politically important in the construction industry. The 1997 edition did not contain a similar provision. On this issue, the 1997 edition merely requires the architect to be aware of, and in connection with its design, comply with all laws, codes, and requirements imposed by governmental authorities, a much broader and more vague standard as it relates to designs dealing with environmental issues than what is contained in the 2007 edition.
In the 2007 edition, and with regard to dispute resolution, mediation is a condition precedent to any form of binding dispute resolution, but binding arbitration is not mandatory for disputes that fail to settle in mediation. This provision gives the parties more flexibility because it allows a party to select the form of dispute resolution, but it does require mediation. In the author’s opinion, this is a good added provision. However, a requirement for mediation could easily be added to the 1997 edition.
In the 2007 edition, there is a new provision related to the owner’s use of the architect’s drawings under what is called a license arrangement that did not appear in the 1997 edition. These provisions in the 2007 edition further protect the architect’s copyright interest.