What You Should Know, What to Look For, and What to Be Wary Of
The OAA continues to review RFPs and contracts with the intent of identifying requirements and provisions that:
- may be uninsurable;
- require an Architect or Licensed Technologist OAA to contract out of their professional obligations as set out in the Architects Act and Regulation 27;
- are a contravention of either piece of legislation; or
- unreasonably increase their obligations beyond those at law.
The article in the link below does not constitute legal advice. It is the eighth in a series of excerpts from Practice Tip 39.1
that should assist practices in making a go/no-go decision with respect to responding to an RFP or in contract negotiations. Members should familiarize themselves with all of 39.1 and refer to it when reviewing RFPs, and bid and contract documents.
To read previous excerpts in this series, click here
2. Examples of Specific Contract Language of Concern Examples of Specific Contract Language of Concern
2.8. Instruments of Service
The Instruments of Service are at a minimum the drawings and specifications issued to authorities having jurisdiction, used to put the project out for bid or negotiation or construction. Depending on the project, they may also include such other documents as instructions to bidders, change documents, reports and letters. As defined in OAA 600, Instruments of Service do not include the editable CAD or BIM files or other original editable documents.
The redefinition of Instruments of Service is often done in conjunction with clauses that require the architect to relinquish copyright and control of their use, and to provide editable (CAD or BIM) files without any indemnification of the architect.
Example Clause 1:
In the definition of “Instruments of Service”, delete the phrase “non-editable” and “or computer-aided design documents (e.g. CAD or BIM – editable files)”
This, in concert with other clauses is used to allow the client to use all the drawings and documents including editable CAD or BIM files for whatever purpose they want, possibly leaving the architect liable in contract and in tort, and without providing any acknowledgement of risk or indemnification for claims by the client or any third parties.
Example Clause 2:
All plans, drawings, submittals and other documents submitted to the City by the proponent become and are the property of the City, and the City may, without restriction, make use of such documents and underlying concepts as it sees fit. The proponent shall not be liable for any damage that may result from any use of said documents for purposes other than those described in this proposal.
If agreed to, the architect gives up ownership of anything submitted to the City for any purpose. This includes any office standard details and specifications. Technically, the architect could not use them again without first obtaining permission from the City.
The Copyright Act is clear that the architect has copyright in the Instruments of Service. The architect may grant the client an appropriate limited license rather than assigning copyright or transferring ownership. In doing so, it is prudent for the architect to require being indemnified and held harmless.
Where a client has any right of future use of the instruments of service with or without a copyright transfer, a release, and indemnity for future use is reasonable and appropriate. The architect should not be subject to defending any claim resulting from others using the instruments of service for other purposes than originally intended. This applies whether or not the original intent was for a single building, for facility management or for repeat projects to the same design.