Practice Management Member Conversations

  • 1.  How to deal with subcontractor requests for electronic files

    Posted 09-11-2012 04:10 PM
    As one who has been in the business for a long time we have come from a paper and pencil environment when subcontractors had to create their own shop drawings for a project from documents they created at their own expense. Today  we are requlary asked to provide subcontractors with electronic copies of our  base documents for them to use in developing their construction submittals.

    Beyond the normal liability concerns/pressures this raises, we often find clients (both public and private) who by contract or insinuation feel that they "own" the documents we have created for them and that we should readily make these available to the subcontractors on their project.

    To try to address this, our specifications, under Submittal Procedures, include the following language:

    "Architects'  Digital Files: Electronic copies of CAD Drawings of the Contract Drawings will be provided by the Architect for Contractor's use in preparing submittals. The Archittect will furnish Contractor one set of digital data drawing files of the Contract Drawings for use in preparing Shop Drawings and Project record drawings through a limited license agreement for a service fee of $100.00 per request. The Architect makes no representations as to the accuracy or completeness of digital data files as they relate to the Contract Drawings. The following plot files will be furnished for each appropriate discipline:
            1.  Floor Plans
            2. Reflected Ceiling Plans    "

    Excerpts from our limited license agreement include the following language:

    The transfer of data shall not be deemed a sale.  The data represents instruments of professional service, is to be used solely with respect to this project, and shall remain Architect's property.  The Architect or its consultant shall be deemed the author of the data and shall retain all proprietary rights, including copyrights embodied therein.  The Architect makes no representations or warranties, express or implied, of merchantability or fitness for a particular purpose or with respect to the Data's quality, adequacy, completeness or sufficiency, or any results to be or intended to be achieved as to its use.  Addenda information or revisions made after the date indicated on the CAD files may not have been incorporated.

    The use of data by the Contractor is limited to the preparation of preliminary plans as required for execution of their work. The Contractor agrees that data shall not be used, in whole or in part, for any other purpose or other projects outside the scope of work.

    The Contractor acknowledges that anomalies and errors can be introduced into data when it is transferred or used in an incompatible computer environment. The use of data by the Contractor will be solely at the Contractor's risk.  The Contractor hereby releases Architect from any damages or losses of any kind, including, but not limited to, damages or losses to property or persons including death, or economic losses, or any consequential, special, indirect or incidental damages, resulting from the transfer or use of the Data, except for damages or losses caused by Architects's sole negligence.

    The Contractor is responsible for modifying the data to run properly on the Contractor's computer system. In the event of a conflict between the Architect's sealed contract drawings and CAD files, the sealed contract drawings shall govern.   The Contractor acknowledges that the Project, as built, may vary from the data transferred to the Contractor.  It is the Contractor's responsibility to determine if any conflict exists.  The CAD files shall not be considered Contract Documents.  The use of these CAD files shall not, in any way, obviate the Contractor's responsibility for proper checking and coordination of dimensions, details and quantities of materials as required to facilitate complete and accurate shop drawings.  Architect shall have no duty to modify Data and reserves the right to retain copy of data delivered to the Contractor which shall be referred to and shall be conclusive proof and govern in all disputes over the form or content of the Data furnished to the Contractor.

    Rarely do we get anyone to accept the agreement much less the service fee. The subs think they're entitled,  being robbed, complain to the general and/or owner that we're being unreasonable and holding up the progress of the job and then we get the phone call from the latter pressuring us to pull our heads out of our nether reaches and give the subcontractor the drawings. In doing so we often have to spend several  uncompensated hours cleaning up the drawings to remove sensitive, liability related or superfluous information to make the file useable to the subcontractor.

    Some of this angst may go away as the use of BIM becomes more the norm. However, for those of us that are still straddling technologies on a variety of project types that don't often require the use of BIM we still struggle this issue.

    We would welcome input from others that have/are facing this problem and have developed strategies to address it with their clients and/or the subcontractors..



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    Thomas Zabala AIA
    Corporate Secretary
    ZGA Architects and Planners Chartered
    Boise ID
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  • 2.  RE:How to deal with subcontractor requests for electronic files

    Posted 09-12-2012 08:19 AM
    We use similar protocols, and I employ a couple tactics that significantly reduce push back from the Owner and Contractor sides.  First, make sure you review submittals section with the Owner during design phase so that they are aware of language you are including in specs related to compensation for cad files.  Second, bring these
    requirements up at the prebid meeting.  I tell bidders at that time if they want cad files from us (plans only), they need to include that cost in their bids, and reference the specific language.  Ask if there are any questions about protocols for distribution of cad files.  Then, document with minutes that are issued as an informational attachment to an addendum.
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    Michael Schaefer AIA
    Plunkett Raysich Architects LLP
    Milwaukee WI
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    Original Message


  • 3.  RE:How to deal with subcontractor requests for electronic files

    Posted 09-13-2012 10:13 AM
    I know it is a litigious world out there but, good Lord, in all of these discussion we sound so paranoid. To me it is all about customer service. If the fear of being sued is going to hinder or even prevent the delivery of customer service then we have a real problem in our industry.

    And by customer service I mean getting the project delivered as efficiently as possible for every one involved.
     
    If we can expedite the process by getting some electronic files to a sub to decrease their response time and lower their cost, which subsequently should lower the clients cost, then the owner should realize that we are doing that as a part of our service and is evidence that we are a more valuable team player.

    With these kinds of tangible "products of contribution" and added value our fees become more and more justifiable. And hasn't the battle against becoming irrelevant to the building process been our struggle for years?

    I for one am excited about making these technologies as an opportunity to be better more highly compensated players and reposition us to what we were at one time and really want to be again - which is the project leader.

    We just need better lawyers I guess!!





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    S. Jones AIA
    Owner
    S Berry Jones - Architects
    Memphis TN
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    Original Message


  • 4.  RE:How to deal with subcontractor requests for electronic files

    Posted 09-12-2012 08:36 AM


    -------------------------------------------
    Richard Shulby AIA, LEED AP, BD+C
    Senior Architect/Project Manager
    Michael Baker Jr Inc
    Owings Mills MD
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    Having also come from the days of clay tablet documentation, both here and at my previous firm we struggled with the issue of release of electronic files. We eventually arrived at similar language in specs and a release agreement for the GC to those in Mr. Zabala's posting below, complete with a service fee. Since we removed the service fee (place the items needing to be cleaned on a separate layer/level to minimize time), we have had virtually no issues with having the agreements signed. Limiting to one copy to the GC and building the initial time into the fee also helps the issue. We do add languge to the agreement making the GC responsible for use of the documents by their subs, etc.
     
    Depending on our master agreement with our client, in some cases we have had the client sign the agreement as well, but have found that prior discussion with the client as to the reasons for the agreement, and inclusion of the release conditions and reference to the agreement in the specs generally make this unnecessary.

    Original Message:
    Sent: 09-11-2012 16:09
    From: Thomas Zabala
    Subject: How to deal with subcontractor requests for electronic files

    As one who has been in the business for a long time we have come from a paper and pencil environment when subcontractors had to create their own shop drawings for a project from documents they created at their own expense. Today  we are requlary asked to provide subcontractors with electronic copies of our  base documents for them to use in developing their construction submittals.

    Beyond the normal liability concerns/pressures this raises, we often find clients (both public and private) who by contract or insinuation feel that they "own" the documents we have created for them and that we should readily make these available to the subcontractors on their project.

    To try to address this, our specifications, under Submittal Procedures, include the following language:

    "Architects'  Digital Files: Electronic copies of CAD Drawings of the Contract Drawings will be provided by the Architect for Contractor's use in preparing submittals. The Archittect will furnish Contractor one set of digital data drawing files of the Contract Drawings for use in preparing Shop Drawings and Project record drawings through a limited license agreement for a service fee of $100.00 per request. The Architect makes no representations as to the accuracy or completeness of digital data files as they relate to the Contract Drawings. The following plot files will be furnished for each appropriate discipline:
            1.  Floor Plans
            2. Reflected Ceiling Plans    "

    Excerpts from our limited license agreement include the following language:

    The transfer of data shall not be deemed a sale.  The data represents instruments of professional service, is to be used solely with respect to this project, and shall remain Architect's property.  The Architect or its consultant shall be deemed the author of the data and shall retain all proprietary rights, including copyrights embodied therein.  The Architect makes no representations or warranties, express or implied, of merchantability or fitness for a particular purpose or with respect to the Data's quality, adequacy, completeness or sufficiency, or any results to be or intended to be achieved as to its use.  Addenda information or revisions made after the date indicated on the CAD files may not have been incorporated.

    The use of data by the Contractor is limited to the preparation of preliminary plans as required for execution of their work. The Contractor agrees that data shall not be used, in whole or in part, for any other purpose or other projects outside the scope of work.

    The Contractor acknowledges that anomalies and errors can be introduced into data when it is transferred or used in an incompatible computer environment. The use of data by the Contractor will be solely at the Contractor's risk.  The Contractor hereby releases Architect from any damages or losses of any kind, including, but not limited to, damages or losses to property or persons including death, or economic losses, or any consequential, special, indirect or incidental damages, resulting from the transfer or use of the Data, except for damages or losses caused by Architects's sole negligence.

    The Contractor is responsible for modifying the data to run properly on the Contractor's computer system. In the event of a conflict between the Architect's sealed contract drawings and CAD files, the sealed contract drawings shall govern.   The Contractor acknowledges that the Project, as built, may vary from the data transferred to the Contractor.  It is the Contractor's responsibility to determine if any conflict exists.  The CAD files shall not be considered Contract Documents.  The use of these CAD files shall not, in any way, obviate the Contractor's responsibility for proper checking and coordination of dimensions, details and quantities of materials as required to facilitate complete and accurate shop drawings.  Architect shall have no duty to modify Data and reserves the right to retain copy of data delivered to the Contractor which shall be referred to and shall be conclusive proof and govern in all disputes over the form or content of the Data furnished to the Contractor.

    Rarely do we get anyone to accept the agreement much less the service fee. The subs think they're entitled,  being robbed, complain to the general and/or owner that we're being unreasonable and holding up the progress of the job and then we get the phone call from the latter pressuring us to pull our heads out of our nether reaches and give the subcontractor the drawings. In doing so we often have to spend several  uncompensated hours cleaning up the drawings to remove sensitive, liability related or superfluous information to make the file useable to the subcontractor.

    Some of this angst may go away as the use of BIM becomes more the norm. However, for those of us that are still straddling technologies on a variety of project types that don't often require the use of BIM we still struggle this issue.

    We would welcome input from others that have/are facing this problem and have developed strategies to address it with their clients and/or the subcontractors..



    -------------------------------------------
    Thomas Zabala AIA
    Corporate Secretary
    ZGA Architects and Planners Chartered
    Boise ID
    -------------------------------------------








  • 5.  RE:How to deal with subcontractor requests for electronic files

    Posted 09-12-2012 10:58 AM
    This discussion thread has come up a few different times in this AIA forum, but it usually boils down to a simple concept:  Is the role of the Architect defined as "circling the wagons" around their work product, liability, and revenues, or is the role of the Architect defined as creating good building projects for their customers, which - in the long run - will allow the Architect to create more work products, buy more and better PLI, and generate more revenues.

    It's pretty clear where I stand on this, since I work in the trades, partly because I became disillusioned with architects' desires to constantly limit their role in construction - even though we tend to be the smartest and most highly-trained players in the construction sand-box.

    From your perspective, Thomas, you seem to see GCs/Owners/Trades somehow profiting from your work product without compensating you.  What you don't see, it seems, is all the times during the construction process, when - in the interest of creating completed projects on time and on budget - GCs and Trades correct your errors and omissions on your documents, usually without notifying you, because it's just not worth the time or effort to make you aware.  Access to your work product (CAD files) allows us to better perform this role and allows us to better protect you from errors and omissions claims.

    The full service architect has an impossible role.  Our creative designs are usually much larger than our mental capacity to delineate those designs on paper, so our drawings are incomplete,  Architects should be welcoming and encouraging of any method or mechanism that brings the knowledge of the trades early into the pre-construction phase.  This protects the architect and leads to better projects which leads to happier clients.

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    William Adelson AIA MBA
    Solar Projects
    West Coast Iron, Inc.
    Spring Valley, CA
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    Original Message


  • 6.  RE:How to deal with subcontractor requests for electronic files

    Posted 09-12-2012 08:24 PM
    Tom,
    My former office had basically the same approach, $100 per file, and we would turn then over to the General Contractor to distribute as they saw fit, with a suitable disclaimer.
    For some owners, the expectation from the beginning was that they would get files at the end of the job (though not written in the contract), and that we would give them to the Contractor. 
    I can think of only one Owner-Architect agreement that specifically addressed the issue, and since we brought the question up, we got to write our approach in, and it was followed.

    We made it clear in Division 01 what the approach would be.  "They" didn't have to bid the job.  If "they" don't value the information they might be able to extract -- well, let them create a to-scale RCP for their sprinkler layout for $100. 

    However ... I think that a better approach is to deal with it beginning with the Owner-Architect agreement.  [and, give the Owner a simple explanation of "instruments of service" - we do so much more than just run a mouse and plotter!] Include distribution of backgrounds as a service, put a price on it, and include the AIA (edited) Electronic Data Protocol as an exhibit.  The Owner is the one benefitting from our efforts and the contractors' efforts.  It is probably a good idea to have accurate (our drawings are pretty close, right?) information available to the contractors.  We can explain to the Owner that it does take more work to distribute electronic files than to send out a print order, and help them to be willing to pay us to do that.  IF they balk, then include the "contractor pays" approach, and smile at the contractor when saying "the Owner asked us to do it this way".

    Instead of drawing lines around everything that we don't do, because we can't get insured to do it, find ways to be helpful and indispensable, and get paid for being that way.

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    Joel Niemi AIA
    Snohomish WA

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    Original Message


  • 7.  RE:How to deal with subcontractor requests for electronic files

    Posted 09-13-2012 04:34 PM
    Joel Niemi's advice--address this topic in the beginning, with the O/A agreement--is sound.  Refer to the AIA E201 and E202 exhibits to contracts.  These two exhibits will soon be replaced by a single document, the new E203 with supporting protocols.  Clear expectations (and compensation, where appropriate) concerning the use and exchange of digital data can be addressed and established in this exhibit to the basic contract.

    I agree with others' comments that as architects we should support and facilitate collaboration among all members of a project team.  Our goal should always be better projects--in the end, that's the best way to limit liability.  Sharing digital information--being helpful, as Joel puts it--is one step in that direction.


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    T. James Taylor AIA, MBA LEED AP
    San Antonio TX

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    Original Message