The AIA Document B152-2019 Interior Design Agreement: Important FF&E Changes

Compared to its widely-used B152-2007 predecessor, the new B152-2019 Interior Design Agreement contains many changes. The new B152 differs more, textually, from its predecessor than most updated AIA Contract Documents I have seen recently.

Take Furniture, Furnishings, and Equipment, for example. The phrase and its “FF&E” abbreviation appeared just 21 times in the B152-2007. By contrast, the B152-2019 contains 93 references to FF&E.

The titles of the old and new B152 foreshadow the new FF&E emphasis:

• AIA DOCUMENT B152-2007, Standard Form of Agreement Between Owner and Architect for Architectural and Interior Design Services

• AIA DOCUMENT B152-2019, Standard Form of Agreement Between Owner and Architect for Interior Design and Furniture, Furnishings, and Equipment (FF&E) Design Services

The new FF&E emphasis is significant. Yet, a quick eyeball of the 2007 and 2019 versions of the B152 reveals that the forms – like many AIA standard forms – appear to be quite similar. Even experienced B152-2007 users might mistakenly assume the forms are substantially similar.

One concern is that design firms, and the project owners which hire them, might not see and appreciate the changes. They might populate the GRAY-SHADED FILLPOINTS, and largely ignore the new B152-2019 verbiage between them. This creates a risk of unpredictable outcomes.

To be clear, the new B152-2019 changes are largely positive. Those who understand them should reap their benefit. However, these somewhat “invisible-to-the-naked-eye” changes present the potential for B152-2019 misuse by those who fail to understand its new features.

This post describes some of the new changes, explains why they are potentially significant, and explains my efforts to help my clients benefit from the new B152.

Two Important Nuances of the B152-2019

Of the B152-2019 issues I am discussing with clients, these stand out as important.

First, the new B152 is not just about Interior Design. It contains substantial FF&E Design Services-related language. Of course, FF&E and Interior Design go hand-in-hand. So at first, this change may seem inconsequential. However, the B152-2019 opens the door for Architects to have a more substantial FF&E role than they may intend.

An Architect may, for example, expect 95% of its attention to be on Interior Design, and just 5% on FF&E. The Architect may not expect to prepare detailed FF&E Documents. And it may not intend to play much of a role in FF&E specification templates, procurement, delivery, inspection, or placement. Yet, Architects who do not closely read the new B152, and calibrate it to their services, may inadvertently agree to a larger FF&E role.

Spoiler alert: reading your contracts closely before signing is a good idea.

Second, the new B152 makes this consequential assumption: the Owner will use AIA Contract Documents to hire the Contractor and FF&E Vendor, if any. Specifically, the B152 anticipates the Owner will use: (1) A104-2017, Owner-Contractor Agreement; and (2) A151-2019, Owner-FF&E Vendor Agreement.

That is important as the new B152 requires Architects to “provide administration of the Contract” per the A104 and A151 (not the familiar A201 General Conditions). But what if the Owner does not use the A104 and A151 for Construction and FF&E? What if the Owner uses non-AIA documents?

Now, the B152 changes are very thoughtful – and largely positive – additions. However, few Owners, Architects, and Contractors think closely about how these documents all work together. I believe more should do so.

Who Cares? Why Does This AIA Document Matter?

From the designer’s perspective, there are at least two reasons these B152 issues should matter. Reasons why architecture and interior design firms should care.

One reason is practical: many design firms want to create a “user-proof” B152-2019 template for repeat use on many projects over the next decade.

The other reason is legal: avoiding the potentially unnecessary liability exposures that come with contracts which do not precisely match the scope of services.

Both are good reasons for Architecture and Interior Design firms to look closely at – and to understand – the new aspects of the B152-2019.

Property owners, developers, constructors, and FF&E vendors who do not understand the new B152 also face risks. In many ways, they are the “flip-side-of-the-same-coin” type avoidable risks to those which Architects and Interior Designers face.

My thesis? All project participants involved in Interior Design and FF&E should invest the time necessary to understand the new B152-2019, the A104, and A151.

I have dedicated considerable effort (a labor of love) helping to educate friends about these AIA Contract Documents. This post aims to further spread the word.

Practical Consideration #1: Creating a Reusable B152-2019 Template

Many design firms created a single template B152-2007, a decade ago, for repeat use on most all of their interiors projects. This is a workable approach.

But the B152-2007 – like many AIA Contract Documents which are more than a decade old – is now in the process of being phased-out over time by the AIA.

Many design firms want to take the same approach with the new B152. That is, many want to create a B152-2019 template for most all of their upcoming interiors projects. They want to “wash, rinse, and repeat” with that template – until the AIA issues its next B152 in a decade-or-so.

This is also understandable, and not a bad contracting strategy.

I have had clients ask me to assist them to create such a B152-2019 template. And that “one-size-fits-all” approach is possible with the new B152. It is possible.

However, that “single B152 template” contracting strategy is perhaps more complicated with the new 2019 version of the B152 than with its 2007 predecessor.

This is partially due to the new FF&E focus of the B152-2019. It is partially due to the new B152’s assumption the Owner will use the A151-2019 contract form to hire the FF&E Vendor – and that the Architect will “provide administration of the Contract for FF&E” as set forth in the new A151. And, it is partially due to other B152 changes outside the ambit of this post.

An alternative to the “single template” contracting strategy is creating three B152-2019 templates: one for “all-Interiors” jobs, one for when the design scope includes “some FF&E,” and one for “Interiors and full blown FF&E design” projects.

But who wants to hassle with three B152 templates? Not many design firms, I bet.

The odds seem good that their project managers, if given too many choices, will occasionally pull the wrong B152 template off-the-shelf in the next decade, right?

Recognizing that every project is different, I have worked to devise an elegant way to modify the B152-2019 so my design firm clients can use a single B152 template – whether the project involves “all-Interiors” or “some FF&E” or “Interiors and full blown FF&E” – for the next decade.

All of my contract forms continually change and improve, over time, and this new B152 template will be no exception. Let’s say it is in the “beta test” stage right now.

Practical Consideration #2: Owner’s Potential Non-Use of the A104 and A151 Forms

My new B152-2019 template addresses its assumption the Owner will use the A104-2017 and A151-2019 to hire the Contractor and FF&E interior design Vendor, respectively.

What follows is obvious, but indulge me…

When an Owner hires an Architect or Interior Designer, the Owner might not know what contract forms it will eventually use to hire the Contractor and, if applicable on the project, the FF&E Vendor.

Usually, the Architect is hired first. Before constructors and vendors, at any rate.

Early in the design phase, the Owner may not know – with certainty – what contract forms it will use to hire the Contractor and, if applicable, FF&E Vendor.

Even if the Owner has a notion about which forms it will use, it can probably only guess at the nitty gritty specifics of the Contractor and FF&E Vendor’s scopes of work.

This uncertainty creates a practical issue for the Owner-Architect Agreement, which is often signed first (because, at the risk of belaboring the point, the designer is usually hired first).

I write about this issue because it relates to the Construction Phase, Construction Administration (CA) and, specifically, the Architect’s CA-related obligations relative to the Contractor and FF&E Vendor.

Many Architects are familiar with providing CA under the AIA’s familiar General Conditions, AIA Document A201-2017. The A201 is well-known. CA under the A201 is a known commodity.

Many design firms instinctively know how to provide CA services under the A201; in terms of getting sufficient fee, providing the right staffing, and knowing – on a “gut level” – what the A201 requires of them.

But the B152-2019 requires Architects to “provide administration of the Contract” for Interiors and FF&E per the A104-2017 and the A151-2019. That is slightly different.

Now, the B152’s assumption of Owner A104/A151 usage is not entirely new.

In fact, the B152-2007 required the Architect to not only administer the Owner-Contractor Agreement under the A201-2007, but also to administer the Owner-FF&E interior design Contracts under AIA Document A251-2007, General Conditions specific to FF&E.

So the real difference in the new B152 is swapping out the A251-2007 in favor of the A151-2019 (regarding the Architect’s obligation to administer FF&E contracts), plus the B152-2019’s greater emphasis and attention on FF&E, generally.

None of this is a problem for the Architect – or anything all that complicated, practically and contractually – if the Owner does use the A104-2017 and the A151-2019 to hire the Contractor and FF&E Vendor, respectively.

And if the Owner were to use non-AIA contracts to hire the Contractor and FF&E Vendor, I am not suggesting any kind of disaster will follow.

However, the B152’s assumption that the Owner will use the A104-2017 and the A151-2019 – and that the Architect will administer the Contractor and FF&E Vendor’s agreement with the Owner, according to the A104 and A151 – can be something of a problem for the Architect if the Owner uses non-AIA forms to hire the Contractor and FF&E Vendor.

The potential problem is that differing assumptions might be contractually imposed on different parties, all of whom must work together: the Architect, the Contractor, and FF&E Vendors.

For example, the B152 might require the Architect to review a certain submittal. Or consider a requested substitution. Or sign off on a change. Or report on site observations. Or require testing of construction work. Or approve payment applications. Or to make an inspection. Or to help document completion of a project, or a certain task. The list goes on and on…

So what if the Owner uses non-AIA contracts to hire the Contractor and FF&E Vendor? What is the big deal? What’s the risk?

The problem can manifest if the Contractor and FF&E Vendor have no obligation, under those non-AIA contracts, to cooperate with the Architect as it tries to administer their contracts. This can theoretically prevent the Architect from fulfilling its B152-2019 obligations to the Owner.

Ideally, the Architect will determine – early in the project, when negotiating the B152-2019 with the Owner – what contract forms it will eventually use to hire the Contractor and FF&E Vendor. That way, the Architect can tailor the B152 to make it consistent with any non-AIA contract forms. This might entail, for example, deleting any obligation for the Architect to administer the Owner’s agreements with the Contractor and FF&E Vendor, if any.

But again, the Owner might not know with certainty, when negotiating the B152-2019 Owner-Architect Agreement, what contract forms the Owner will eventually use to hire the Contractor and any FF&E Vendor.

Practically speaking, the risk I am writing about – inconsistent contract obligations between the Architect and Contractor, and any FF&E Vendor – probably would not manifest as a problem on many real projects. It might be a theoretical problem, but perhaps not a claim-causing or a claim-losing one on most projects.

Most projects are successfully completed without incident and without significant claims. This is true even if the contracts say the Architect will perform certain functions, but the Architect does something else.

Occasionally, however, an Architect may sign a B152-2019 and inadvertently agree to administer the Owner’s non-existent A104 agreement with a Contractor, or the Owner’s nonexistent A151 agreements with FF&E Vendors – and that might come back to haunt the Architect.

Is this likely? That is debatable.

Is it possible? Absolutely.

Since the B152-2019 will be around for another decade-or-so, the “law of large numbers” suggests this issue will be ‘claim-causing’ and ‘claim-losing’ for some Architects.

Now, nobody likes a problem without a solution, so I devised template B152-2019 revisions to address its assumption that the Owner will use A104 and A152 contracts.

Specifically, Architects can use my B152 template whether or not the Owner hires the Contractor and FF&E Vendor with AIA contracts or non-AIA forms. Again, that template is in the “beta test” phase.

Legal Concern: Contracts Which Don’t Reflect Project Realities Invite Claims

So what is the risk of using contract forms which ill-describe the project, and the roles, rights, and responsibilities of its various project participants?

What is the downside of using contracts which misdescribe the Architect’s and Interior Designer’s scope of services?

The answer is simple: it invites claims and unpredictable outcomes.

Take this example.

Assume an Architect signs a B152-2019 which spells out a considerable FF&E role for the Architect. Now, assume the Architect never fulfills that role. Assume the Architect never intended to focus much on FF&E. Assume the Architect considered the new B152 to be just like the B152-2007, and entered only things like the Owner’s name and the Architect’s fee.

That might be fine with the Owner (at least initially). It might not have expected the Architect to fulfill a large FF&E role. The Owner might have contracts with other parties for FF&E specification template, design, procurement, and installation. The Architect might not have carried fees for much of an FF&E role, either in the CA Phase or otherwise. And the Owner might not have been willing to pay the Architect for those services.

The project could conclude with everyone satisfied and happy, including the Architect and Owner.

Yet, the B152-2019 nevertheless spelled out that greater – and largely ignored – FF&E role for the Architect. Like the sword of Damocles, the ill-fitting contract language can hang over everyone’s head, awaiting a problem, even after the project ends.

Now imagine a claim down the road. Imagine the Owner becomes somehow dissatisfied with the project months or years later. Alternately, imagine that the Owner faces a third party claim. An accessibility claim, for example.

Now imagine the Owner hires a lawyer. That attorney might very well seize upon ill-fitting B152-2019 language. The language which required the Architect to play a role “greater-than-understood” and “greater-than-expected” by both the Owner and Architect, perhaps for FF&E during the CA Phase.

Could the Architect face a claim? Absolutely. Could it lose? Yes, it could.

Let’s take the hypothetical claim further.

Assume the Architect’s plans and specifications are good. Assume they meet the standard of care.

Assume the Architect committed no design-based violations of the accessibility statutes, rules, and codes which require certain buildings to be readily accessible to, and usable by, persons with disabilities.

Assume its details comply with all related requirements, such as Title III of the Americans with Disabilities Act (ADA) or the relevant portions of the Fair Housing Act (FHA).

Assume the Architect’s design provides ample room for all FF&E to be laid out so persons in wheelchairs have adequate routes for passage, turning radius, etc. Assume that the FF&E design is completed by others, including through submittals and shop drawings.

But what if the FF&E Vendor, or others, did not position and arrange FF&E as intended? This could be mis-located treadmills in the gym. Or imprecisely fabricated custom millwork. Or it could be pieces of equipment or fixtures placed contrary to accessibility space requirements.

Assume none of this is the Architect’s fault.

For example, what if those FF&E deviations have their root in the Contractor’s deviation from the Architect’s design – robbing the room of an inch or two – leaving an as-built space which does not, and could not, comply with the ADA or FHA without remedial changes?

What if the Architect faces an accessibility-related claim based on these slight as-built deviations? What if someone argues the Architect would have spotted them had it fulfilled its B152-2019 scope of services?

Now, accessibility claims are complex, legally and factually. But with a good attorney, the Architect might eventually prevail in the claim.

Of course, it could be cold comfort for the Architect to “prevail in the end” before a jury or arbitrator. At best, it would have to pay its insurance deductible with real cash, and suffer a significant hassle.

But what if the fact pattern were grayer?

What if aggravating facts could obscure, to a judge or jury, that the Architect is really not to blame for these issues?

Assume that the Architect did perform FF&E inspections, and general site observations, in the non-compliant rooms. Assume the FF&E deviations were not apparent to the naked eye.

Assume the Architect did not use a measuring tape to document every dimension down to the inch. Few Architects would probably consider this to be their contractual duty. And the majority of Architects would probably be right. I bet only a few Owners would pay an Architect for such a detailed inspection.

Be assured, however, that these economic realities on the “project-side” will not stop a claimant’s lawyer, on the “claim side,” from using the literal language of the B152-2019 (or any other contract, really) against the designer.

And who could blame the lawyer? Attorneys cannot be expected to observe invisible stop signs, particularly when doing so would be contrary to their clients’ interests. Their job is to advocate for their clients.

In these circumstances, the Architect could get dragged into litigation. It could lose its insurance policy deductible, suffer reputation damage, or much worse.

The Architect could wind up bearing liability for issues the Owner did not earnestly expect the Architect to solve for – and for which the Architect was paid little fee – during the project.

In those circumstances, or under myriad other hypotheticals, the Architect might wish it had a contract accurately tailored to its true scope of architectural and interior design services.

That is when Architects which have 95% of fee in Interior Design, and just 5% of their fee dedicated to FF&E-related tasks, might wish their contract reflected that true 95/5 split.

None of what I write about above is unique to the B152-2019 or any AIA Contract Documents. Stated plainly, people who sign bad contracts have bad outcomes. The form of the contract is largely irrelevant. The content matters.

And as noted above, the new B152-2019 changes are largely positive. Those who understand them should reap their benefit. However, these largely “invisible-to-the-naked-eye” changes present the potential for B152-2019 misuse by those who fail to understand its new features.

In particular, the new text of the B152-2019 – being different than its 2007 predecessor – does present some risk that designers may inadvertently agree to perform unintended tasks. Like all contracts, the new B152 should be read carefully.

Bottom line: it is always desirable for contracts to reflect project realities. If the Architect does not intend to provide “FF&E Document Phase Services,” or “FF&E Procurement Phase Services,” or “FF&E Contract Administration Services, the Architect should delete or otherwise address the standard B152-2019 sections which assume the Architect will so-provide.

This is not just true for Architect. Owners, Interior Designers, Contractors, FF&E Vendors and everyone else – on every project, interiors or otherwise – should all want contracts which accurately reflect their scopes of work.

Conclusion

The B152-2019 Standard Form of Agreement Between the Owner and Architect for Interior Design and Furniture, Furnishings, and Equipment (FF&E) represents a step forward, in many ways, from the B152-2007. Like its predecessor, I predict the B152-2019 will become the “go-to” contract form for architectural interior design services in the next decade.

But like all standard contract forms, the B152-2019 is just a starting point. All contract forms, no matter which kind, can be tailored to meet the needs of specific projects and their participants.

Because the new B152 follows closely on the heels of the widely-used and well-known B152-2007, and contains some changes which may not be apparent to the naked eye, caution is warranted upon initial B152-2019 use.

Specifically, Architects and Interior Designers should note the greater FF&E emphasis in the new B152, along with its assumption the Architect will administer the Owner’s A104 and A151 agreements with the Contractor and FF&E Vendors, respectively.

People who merely populate the B152-2019’s gray-shaded fillpoints, adding the contracting parties’ names, descriptions of the project, and schedule and fees, but ignoring the B152-2019 verbiage between those fillpoints, risk unpredictable outcomes.

Not to scare you or anything…

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This publication is prepared for the general information of friends of Baker Law Group LLC in Illinois. It is not legal advice for you, or legal advice regarding any specific matter. Jeremy S. Baker is licensed to practice law only in Illinois. Under rules applicable to the professional conduct of attorneys in various jurisdictions, it may be considered attorney advertising material. Prior results do not guarantee a similar outcome.

You might also like Jeremy’s video, What Risky Contract Terms Concern Smart Architects and Engineers.