Designer Fired - Re-use of plans. 4

[JAE]

http://www6.lexisnexis.com/publishe...rgId=1718&topicId=100007466&docId=l:303230049

Just a news clip to review - a design firm was fired by the Atlanta airport. You can argue the "who's right and who's wrong" - but I was struck by the following statement made by the airport rep:

DeCosta said he would rebid the project and hoped the new design team could use the existing plans. But "if it turns out they can't salvage them, they will be scrapped and the new team will start from scratch," he said.

I would think that the design plans were the intellectual property of the designer, not the airport. How can they re-use the plans - Wouldn't this be a conflict of ethics?

 

[CajunCenturion]

Assuming that nothing was specified contractually, wouldn't the designs belong to the airport since they paid for them? I think the is entitled to what they paid for.

Good Luck
--------------
As a circle of light increases so does the circumference of darkness around it. - Albert Einstein

 

[CanuckMiner]

We have had to stop work on projects in the past (not fired, but the work has been stopped for other reasons, usually financial reasons on the client's end). In those instances, we have had to deliver all drawings and documents produced (and in progress). Provided that the client has paid the bills up until the stop work order, I would think that they are entitled to the work produced up until that point.

Cheers,
CanuckMiner

 

[whyun]

I agree with CajunCenturion and CanuckMiner that the airport is entitled to work produced that has been paid off.

It would be unethical for the airport to use ANY content generated by the original design firm on areas that are outside the original scope of work.

It is wishful thinking on their part that a new design team can "pick-up from where the other left off". Time has to be spent validating the design by the former team and appropriate fee be negotiated.

 

[JAE]

hmm.. I'm thinking of two views here - one is that it may be illegal for another engineer/architect to use someone else's plans. I seem to recall lots of language in the engineering laws of the various states I'm licensed in where it says it wrong for an engineer to simply take another design and just go with it - everything is supposed to be designed BY the designer, or under their direct supervision. In this case, none of Leo Daly's designs would fall under the new engineer's direct supervision.

The other avenue of thought is that in many cases, the design documents are not the "purchased product" of the designer. The design is usually the intellectual property of the designer. The owner has not purchased the documents, or for that matter, the design. What the owner has purchased is the SERVICE of the A/E - to provide the expertise to allow a project to be built. The documents are simply an instrument of that service.

 

[EddyC]

The owner paid for a set of drawings and got a set of drawings. I see no problem here.

If another design firm uses information from those drawings, they do it at their own risk. At the very least they would have to verify the design done by someone else.

My current employer has a client who many time circulates drawings and information from competitors to us and asks us to utilize them as much as possible. I think that its sleezy but its not my call.

 

[JAE]

...EddyC - I guess I disagree with the idea that the owner paid for the drawings...that's just my point - in the A/E industry the owner pays for the service - not the drawings.

 

[hawk87]

The client, pending all bills are paid, is the owner of drawings produced. Usually the originals are stored with the designer in the designer's office.

My question is, is the owner or subsequent design team of a different firm entitled to the cad files?

 

[JAE]

Here is an ethics page with a similar Case history:

Ethics Case

Note that this deals only with the ethics part of the case, and not the legal part. In this particular case, the orginal designer was concerned over Public Safety in the use of his/her drawings by another engineer. It seems to be silent about the ownership of the drawings.

 

[CanuckMiner]

JAE,

I work for an engineering firm. In our proposals, we very clearly itemize the deliverables which will be issued: a report, drawings, specifications, etc.

Consider a case where an Owner has an existing device or structure which my company designed. The Owner wishes to enhance the device, or add something to the structure (maybe add a monorail/hoist in a particular location). The Owner could contact my company to engineer this work, but is perfectly within his rights to go to another company for the design. In so doing, the Owner would have to provide the plans and specifications of the device or structure (prepared by my company) to the "new" engineering company.

If the Owner does not have ownership of the design documents, then I guess we, and our clients, have been doing it wrong for a long time.

I agree with others here that the issue in your original post isn't so much one of ethics, as it is of liability. The new engineers will have to assure themselves that the work done to date was correct.

In the jurisdictions in which I am licensed, I am ethically obligated to inform other engineers if I am reviewing their work provided they are still involved with the project. It tends to get a little hazier if they are no longer involved, but the recommended practice is to inform them even after they are no longer on the project.

Cheers,
CanuckMiner

 

[JAE]

CanuckMiner: good points - I'd point out though, that the case you suggested, the Owner wasn't taking your partially completed design and giving it to another to use as a launching pad to complete the design.

Rather, the Owner was providing as-built drawings of what already existed, and asked another designer to add to that design or alter it in some fashion.

What I'm getting at is this: if I as an engineer am approached by an Owner, and given a partial design by another engineer who was fired, I must, under most all engineering laws in the US, obligated to start from scratch and engineer every part of the new project "under my direct supervision".

And should there be a unique detail that was developed by the intellectual abilities of the former engineer, am I "stealing" their intellectual property by using that detail?

I agree that if the original engineer was paid in full for the services rendered, then there is some point to the idea tha the Ownwer can't use anything of the original designs....the City of Atlanta certainly couldn't manufacture a completely different (in all respects) design...but would certainly want to use the scope, concepts, and layout of the plans to date....that makes sense.

It just seems that years ago, the engineer provided a service, and the drawings were simply instruments of that service and not the actual "deliverable" to the Owner. Rather, the deliverable was the expertise that was applied to the project. The drawings and details were simply a tool.

 

[whyun]

CanuckMiner,

Good point about the liability issue. When the original design team was fired, it is a breach of contract by the airport. The liability has been effectively lifted from the original design team.

The new design team, whether they decide to use any portion of the original design or not, will now be contractually obligated to assume responsibility of the finished product.

For JAE, I believe that the client purchased the right to "use" the contents in the design documents on a particular structure in a particular site as outlined in their contract with the design team. The new design team, assuming full responsibility, may take the contents produced by the original designers and modify as they see fit.

 

[CanuckMiner]

JAE,

I am reminded by my employers that the only "product" that we, as an engineering firm, sell is time (hours). In lighter moments, we jokingly compare our service to that of a prostitute.

Your original post questioned the ownership of the design plans. My example was meant to illustrate that the Owners I deal with, and other engineering firms in my field, would consider the design plans as the property of the Owner. IF it is agreed that the Owner has the rights to the complete design, can we extrapolate that to his right to an incomplete design for which he has paid? I would say yes, but then again, I'm not very well educated in contract law.

Regarding your scenario whereby you are presented with a unique detail developed by the ingenuity of another, I believe that the Owner's right to share it with you would depend on the wording in the contract with the original engineer (i.e. there may be a clause discussing unique details and respecting the rights thereof). As to whether you would be "stealing" the unique detail, well, that would depend on who "owned" it and the willingness of that individual to share it with you.

Cheers,
CanuckMiner

 

[EddyC]

hawk87,

Whether or not another party owns the cad files of a project is dependent upon the contract between the parties involved.

JAE,

Your ethics example seems to agree with my opinion that the drawings are the property of the airport and that the engineer is in compliance with the law in turning over hard copies to the airport. The original engineer has no way of knowing beforehand what the airport will actually do with his/her drawings, irrespective of what is stated verbally. Why would a client pay you for a service and then want nothing (drawings) in return after your business is concluded?

 

[boffintech]

EddyC writes, "The owner paid for a set of drawings and got a set of drawings. I see no problem here."

IF the owner paid I would agree, but Leo Daly claims that the airport still owes him $10,000,000. Leo also wants $50,000,000 in damages for his bruised reputation.

 

[EddyC]

I wish it was part of state law that no drawings are to be issued unless the engineer is paid.

 

[CajunCenturion]

From the article in the original post:

Hartsfield-Jackson has paid the team $34 million for their designs, and is scheduled to get the completed plans next week.

I'm guessing that $34 million buys a lot of design.

Good Luck
--------------
As a circle of light increases so does the circumference of darkness around it. - Albert Einstein

 

[JAE]

Why would a client pay you for a service and then want nothing (drawings) in return after your business is concluded?

In this example Daly provided a service....probably lots of services including planning, reviews, research, design options, design plans, etc. - which the Owner paid for with a view towards completion of the project. If the drawings themselves constitute the entirety of the A/E's "product" then Atlanta should be asking for their $34 million back since they got 'nothin for it.

But the reality is they contracted with Daly to perform professional services, and the instrument of some of those services included drawings.

I agree that if the contract states that the drawings are the property of the Owner, then they are the property of the Owner. But I was just questioning the legality and ethics of an Owner firing an A/E and then just handing the new A/E the plans to "finish" them.

 

[IRstuff]

Anything that is proprietary should be identified in the contract and marked accordingly on the drawings.

If there are no proprietary details and the owner has clear title, then there is no issue.

Since it is up to engineer to assert his datarights; failure to do so is his loss.

TTFN

 

[CajunCenturion]

==> But the reality is they contracted with Daly to perform professional services,
Do you know what the contract delineated as the deliverables? Do you know the terms of the contract? Do we know how the contract handled parties in default situations? Without answers to these question, we can only guess, but what we do know is that in the USA, case law and precedent is fairly clear that in lieu of specific contractual allowances, "works done for hire" belong to and are owned by the employer. As the owner of that work, the owner is entitled to dispose of that work in whatever matter is deemed appropriate.

Good Luck
--------------
As a circle of light increases so does the circumference of darkness around it. - Albert Einstein