Using another firms design files 2

[OUGOOCH]

We are a small Consulting Engineering Firm. A City we were doing a lot of work for has hired another "extremely" large firm to do their work. We were asked to design approximately 4 projects prior to the change of consulting firms. We have now been asked to stop design and turn over our work to the other firm. According to our contract with this City, our deliverables are plans and specifications. Designs on these projects are around 80% complete. To further complicate things, we haven't been paid for the work that we have done to date.

Is it ethical for this new firm to ask for our electronic files to include AutoCAD design files, survey files, and specifications?

Should we turn these files over to them and let them use them?

*note: We are rather glad to be rid of this City due to the problems associated with it.

 

[TheTick]

Get your money first. Governments are slow and forgetful when it comes to paying for things they have already received.

 

[GeneratorGrrl]

I wonder whether its the other firm that's asking for your hard work, or whether its your City client :B I'd bet the latter but I'd not rule out the first possibility either -- no, I don't think its ethical in the slightest, but "business ethics" seems to be rapidly becoming an oxymoron

I don't think it unethical to hold your work hostage until you get your moolah though :3

"Eat well, exercise regularly, die anyways."

 

[OUGOOCH]

I am mainly concerned with the electronic files. I don't want to hand them over to this other firm. I don't mind giving them the paper plans, once we have been paid of course.

 

[Ron]

Get the money first. Then negotiate a liability release from the City and the new engineering firm to negate or limit your liability in the use of the information you provide to the other firm, electronic or otherwise. Provide the info to them with a expectation of its use and the limitations of such use. Do not take responsibility for the information after it leaves your control, particularly in a format that is changeable.

Keep a copy of your information for future protection against changes.

 

[patprimmer]

Until they pay for it, you own it. After they pay for it they own it, but they should sign documents absolving you of responsibility for the results of the final design, seeing as they are eliminating your input to the final stages of the design process.

Regards
pat pprimmer@acay.com.au
eng-tips, by professional engineers for professional engineers
Please see FAQ731-376 for tips on how to make the best use of Eng-Tips Fora.

 

[Ron]

patprimmer....just because they pay for it doesn't mean they own it. Under our (and most engineering firms) standard contract conditions, we own the product and maintain control over all hard copies. This is common in the US. Often we are asked to sign contracts where the client becomes the owner of our documents. We resist this and try to make it clear that our documents are instruments of service and that we must statutorily maintain the control over all production of such documents as they are to be signed and sealed by us, not the client. Further, we are precluded in our state (and many other states in the US) from issuing any document in a changeable form (such as originals, electronic copies without encryption to track or identify if changed, etc.)

This concept does break down sometimes when you are dealing with municipalities or other government agencies. Many government contracts require ownership of documents and allow for re-use with indemnification.

 

[patprimmer]

I am talking ethically not legally

Regards
pat pprimmer@acay.com.au
eng-tips, by professional engineers for professional engineers
Please see FAQ731-376 for tips on how to make the best use of Eng-Tips Fora.

 

[jsummerfield]

Electronic files does not necessarily mean AutoCAD .dwg files. Consider updating the AutoCAD files with your logo and a watermark or stamp idicating design in progress not ready for issue and submitting .pdf files of the drawings.

Also, check your state PE laws in this regard.
Search for topics such as "Work performed by more than one engineer not attributed to each engineer". In Texas, "work performed by more than one license holder shall be sealed in a manner such that all engineering can be clearly attributed to the responsible license holder or license holders. When sealing plans or documents on which two or more license holders have worked, the seal and signature of each license holder shall be placed on the plan or document with a notation describing the work done under each license
holder’s responsible charge."

John

 

[BobPE]

Everyone is on track with payment. Your ethical leg to stand on to demand your money is that it is unethical to provide engineering services without receiving a fee.

Insofar as work product, be prepared to turn it over, and don't be shocked if you are asked to sign and seal it depending on just what stage the work product is at. In saying that, negotiate a fee that allows you to keep informed of the process concerning your designs until such time you feel you no longer need to be a part of the project. As the engineer in responsible charge of the work product up to the point of handing it over, you will be responsible for what you did to that point. It would be nice not to be able to take responsibility and you should try to legally absolve yourself, but in the end, the engineer in responsible charge is just that, responsible. The bright side is that the new engineer in responsible charge will also be responsible...

Have the new firm help you with the client. The new firm will understand the engineering ethics involved and together, both firms can help the client understand the consequences of their actions.

Let us know how you make out...

BobPE

 

[stevenal]

Does the city understand they will be left with unsealed documents? At 80%, they cannot be sealed by OUGOOCH. And not prepared under the responsible charge of the large firm.

 

[BobPE]

stevenal:

Why couldn't the designs be signed by OUGOOCH? This person may have an ethical responsibility to sign depending on the situation.

This situation can be compared to the engineer that leaves a firm. If a Registered Engineer in responsible charge of a project leaves a firm and their last project was 80% complete. The firm then completed the remaining 20% which involved detail work lets say. When the time came to seal, they found the original engineer that left the firm and had them sign and seal the drawings...The engineeer is obligated to do so (leaving cost out of this for simplicity). A similar discussion will need to be had between the OUGOOCH, the new engineer, and quite possibly the client since there may be costs involved.

Does this example go along with what you were thinking??? It is a difficult subject and doesn't occur too often..

BobPE

 

[stevenal]

I don't see how OUGOOCH can seal 80% drawings unless he happens to live in a place that allows it. (see other recent thread) Even then, they are marked "preliminary" Large firm cannot seal them since they were 80% done out of their responsibility. The only solution would be for the large firm to act under the responsible charge of OUGOOCH so that he could seal them at completion. But OUGOOCH has been asked by the client to stop all design work. The way I see it, the client has ensured they will not have sealed documents.

 

[BigH]

Why are you being removed from the project? What does your contract have in place with respect to this. I think that I would fight the removal aspect especially if the city has no cause. Does the city have a PE involved on staff? If so, how does his ethics come into play? ... and his legal position? If, later, the other firm uses your drawings without informing you, they would be violating professional ethics. Interesting position. Without receiving payment, I'd give the city nothing - better yet, have your lawyer tell the city you are giving them nothing.

 

[patprimmer]

What does 80% finished mean.

Many aspects or components might be 100% finished and a few not started or in very early stage.

Drawings of finished components could most probably be sealed, depending on the influence or interaction of other components

Regards
pat pprimmer@acay.com.au
eng-tips, by professional engineers for professional engineers
Please see FAQ731-376 for tips on how to make the best use of Eng-Tips Fora.

 

[DRC1]

1. If you don't finish the drawings and the drawings are not complete for construction, do not stamp them. The obligation a profesional engineer has to the general public exceeds the requirements of the contract. Further I doubt it was the firms intention to stamp 80% drawings and then have them completed by another firm.
2.I disagree with the payment advice - sort of- Holding the drawings may files is probably contrary to the terms of the contract. This would put you in a postion of breeching the contract. Certianly nonpayment is a breech also, but presumably there are remidies in the contract. Therefore untimely payment, although a breech, may not be considered a serious or "material" breech. Not producing the drawings could it be argued cause the owner harm by dealying the work which can easily be construied as a material breech. This would leave you in a weaker postion to get your money, and possibly expose you to damages from the city. The contract probably had required you give timely notice of a breech (non payment) and that was not done, you are still entitled to your money, but your ability to claim a material breech is somewhat, although not entirely, strained. Finally can not emphise enough how important notice requirements are.
3. If you have by now, stop reading, pick up the phone and get your lawyer into this NOW!

 

[OUGOOCH]

Gentlemen,

Your great advice is on track with what I had already considered. These plans are in the final design phase, meaning they are ready for the final once over, verification, quantities, and specifications. According to our contracts, we charge 80% at the time of bidding and then the remaining 20% is collected during construction.

This particular city uses contract Engineers or consulting engineers to do their work. They cannot afford an onstaff engineer. Although, now they are paying this firm more for its time then if they had hired their own engineer. (our fees where around 8% of construction theirs are up to 20%) There seems to be something fishy going on with their bond funds and payments to this new firm that I don't want any part of.

I think it is time for the legal experts to handle this one.

 

[TrevorP]

note: We are rather glad to be rid of this City due to the problems associated with it.

This particular city uses contract Engineers or consulting engineers to do their work. They cannot afford an onstaff engineer.

It sounds to me like they can't afford NOT to have a staff engineer.
Cancelling a project when 80% complete sounds like a sure fire way to let costs and timescales to spiral completely out of control. As a client I would only consider this if the supplier was grossly incompetent and/or way behind time and/or way over cost. If this is the case, you will have a legal battle on your hands.

However, I will assume this is not the case in this particular instance. Therefore, whether you have to hand over your documents or not before payment depends on what the contract specifies. Again, what you have to hand over depends on the contract. We can't answer that here. One thing I'd be fairly certain of though is that your contract is with the city, and not with a third party. Again, if it is a case of you do the design and a third party constructs, then there may be something in the contract to specify this. Either way, I recommend you put a statement, if not on already, that the documents are not allowed to be released to third parties without your prior written consent. The drawings etc. remain your copyright, unless this is also included in the contract. You should have the right to say who can copy and distribute this. I would suggest that you have an ethical obligation to sign off drawings etc. that have been completed and in a position to sign off, and that you have a legal and ethical obligation not to sign off those that are not complete.