Richard Shulby AIA, LEED AP, BD+C
Senior Architect/Project Manager
Michael Baker Jr Inc
Owings Mills MD
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.
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
ZGA Architects and Planners Chartered