Members Advisory – Request For Proposal: Powell River Public Library
October 17, 2011
Having reviewed the above‐noted RFP, the AIBC is obliged to issue the following cautions:
- Regarding Clause 8.3: Persons (including architects) cannot contract out of their statutory rights: nor is it feasible or insurable for an architect “to save the Client harmless from all liens which may be asserted against property covered hereunder, including without limitation mechanic’s liens or claims arising under Worker’s Compensation or Occupational Health and Safety laws and from all claims for injury to persons or property arising out of or related to such property unless the same are caused solely and directly by the Client’s negligence”. Among other factors, the architect (or any engineer) is expressly not responsible for construction safety as a matter of industry standard and the B.C. Building Code.
- Regarding Clause 9.2: AIBC Bylaw 28.3 states that all drawings, specifications, models and documents prepared by the architect as instruments of service shall remain the architect’s property, the copyright in the same being reserved to the architect in first instance. Accordingly “Any work, writing, idea, discovery, improvement, invention (whether patentable or not), trade secret or intellectual property of any kind first made or conceived by the Architect in the performance of the Agreement or which is derived from the use of information supplied by the Client” is the exclusive property of the architect in the first instance. The architect, per AIBC Practice Note 7, can provide such property (“their instruments of service”) to the owner for use with exclusive or limited rights as long as the pertinent service has been paid for.
- Regarding Clause 9.3: Intellectual property remains the property of the architect. The request that the architect “grants to the Client, and to the Client’s subcontractors and customers, in connection with the use, offer for sale, or sale of products provided to or work being performed for the Client, an irrevocable, non-exclusive, paid-up worldwide license under any and all intellectual property (whether domestic or foreign), including patents, copyrights, industrial designs and/or mask works owned or controlled by the Architect at any time or licensed to the Architect…” is unnecessary, unacceptable, and impracticable in the extreme (see note referencing Clause 8.3, above).
- Regarding Clause 9.5: “All estimates, budgets, reports, design documents, digital animations and similar documents prepared by the Architect” are considered the architect’s instruments of service and are in their first instance, the property of the architect. Accordingly, providing the client with the exclusive rights in the first instance to these instruments of service would also be unnecessary, unwise, and a contravention of AIBC bylaws.
- Regarding Clause 11.1: The architect cannot and should not “warranty all services against defects in performance for a period of one year following delivery.” The architect provides advice and service, not a product. Professional liability insurance policies do not cover an architect’s provision of products or guarantees.
- Regarding Clause 17.1: The request that the “Client reserves the right to audit Architect’s records to assure compliance with the terms of the Agreement” needs careful, practical attention. Being open and transparent is a healthy approach, but subject to professionally reasonable limits of time, resources and access.
While the project itself is of interest and well‐intentioned, proposals that comply with the RFP as written would place architects and their firms in jeopardy as to business risk, professional conduct, and insurability. Specific attention needs to be drawn to AIBC Bylaw 28: Conditions of Service (http://www.aibc.ca/member_resources/doc_index/bylaws/bylaws2001_webversion.pdf) and the Code of Ethics & Professional Conduct thereunder, as well as AIBC Bulletin 64: Proposal Calls and Related Issues (http://www.aibc.ca/bulletins/Bulletin_64_Jul04.pdf) and the Guidelines on Intellectual Property (published jointly by the AIBC, Association of Professional Engineers & Geoscientists of British Columbia and Consulting Engineers of British Columbia).
The AIBC has shared these concerns with those responsible for this project and looks forward to the RFP’s amendment so that architects and their firms are able to submit responsible proposals in keeping with AIBC Bulletin 64: Proposal Calls and Related Issues.
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