I have an Owner that would like to reuse the Division 01 Specifications that we prepared for a specific project. He would like to use them on two other projects that are being designed by our COMPETITORS.
We (I) spent a lot of time coordinating Division 01 specifications with the Owner’s marked up AIA A201 and Division 00 documents. Therefore, the Owner does not want to reinvent the wheel for the next two projects.
The partner, project manager, and I all say NO! But the Owner insists!
Please give me some ammunition to explain to the partner, who will tell the owner, that reusing Div 01 from one project to another is a very BAD idea.
Simply mention the Federal copyright laws and the settlement that the Owner and next contractor would have to pay. If you are unfamilar, contact your attorney or have the firm’s attorney write a letter.
The specifications, including DIVISION ONE are your intellectual property, equal in that sense to your Drawings. The client probably understands that he cannot re-use the Drawings for your project again for another one, unless the rights to do so were clearly spelled out in your contract with them. They just need to understand that this concept applies to the specifications as well.
Perhaps you should offer for a reasonable fee to assist them in making a DIVISION ONE template for use on up-coming projects. You might set up a set fee for each use, or an agreement to do the editing yourself each time. Many clients use a standard DIV ONE templete that gets modified for each project, this is not a bad way to operate as long as you do modify it where it counts. Many of our projects have many phases and increments, sometimes not even worked out when we begin. I always start with the idea of a template document that can be quickly modified to suite a particular increment or partial bid-out.
Check your owner-architect agreement. We have one client whose agreements state that they have all rights to all documents produced for or related to the project, something we generally get changed.
Check your General Conditions regarding ownership rights. The AIA A201 states that Instruments of Service belong to the Architect. However, the General Conditions to the Agreement we write as a puiblic agency states that we, the Owner have ownership rights to the Contract Documents, not the A/Es. We do however, stipulate re-use fees in the Agreement with the A/Es if we re-use their designs in the furture.
As Russell points out, public agencies often retain ownership. In fact, many of them (rather brazenly, in my opinion) claim the right to reuse them whenever they want for whatever reason. I worked for one client like that at a previous employer. Partly for that reason, the specs we used on their projects had not been updated in nearly twenty years. The employer did not want to give away their work. I felt that we needed to update anyway, for our own liability and professionalism. I lost. (Hey, they were still using the 8A, 8B etc. style of numbering spec sections!)
There may be legal rights involved beyond those of you and your client. If you use a licensed master specification system as the basis of your work, you may not have the right to transfer ownership of derivitive works created from that product to a third party for use on other projects unless that party acquires and maintains a license for that master specification system throughout the period of time they use that work.
Compensation for copyright infrigement may include damages, such as lost profits from the infringing activity, or statutory damages ranging from $250 to $150,000 for each infringing copy or higher if the court feels that the infringement was committed willfully.
Always look for ownership rights when dealing with public agencies. As a for instance…we’re currently involved in a to do over ownership rights and the Public Information Act. One of our A/Es doesn’t want to show their/our documents to bidders on similar projects because the A/E thought the docs were theirs. However, the bidder in question knew as a public agency, we owned the docs, and per the Public Information Act, we are obliged to make the docs public. So accordingly, we’ll have to do so. That’s one smart bidder.
One other thing not mentioned above is the liability. Hopefully, your contract with Owner/client not only states ownership of documents, as mentioned above, but also release from liability for any such “reuse” without your explicit permission?
Division 1 includes a wide variety of information. A lot of it (such as product selection requirements) is fairly generic in nature and will not likely change from project to project. Other sections (such as selective demolition) almost always change from project to project.
Architects use Division 1 mainly to instruct contractors as to what the Architect will expect of the contractor during the construction of the project. For me, the question is simple: Is the owner hiring the architect to conduct construction administration or is the owner planning on conducting construction administration without the Architect?
If the owner intends to conduct all construction administration without the architect, then you should follow the owners instructions and create division 1 to the owners liking. The owner will undoubtedly pay the price of not taking advantage of the architects expertise but thats the owners problem. However, if the Architect is being hired to conduct construction administration work, the owner needs to step aside and let the architect do the job for which he or she was hired. Writing the division 1 requirements is an important part of that job.
In other words, an owner should not hire an architect to oversee construction of the project and then tie the architects hands by not allowing the architect to specify the contractors requirements during the construction.
The architects (plural) are hired to do the construction administration for their projects.
So basically the Division 01 we (I) wrote for High School A will be used to build Elementary School B, Middle School C, and possibly other future projects. All three projects will have three different designs, sites, schedules, and architects. The Owner will hand the other two architects our (my) edited Division 01 specs for High School A and say, “Here. Use these for your Middle and Elementary Schools.”
… and if those architects are smart, they will insist on using their own Division 1. The other architects will have their own liability issues to address and would not be protecting their interests if they did not use their own documents.
Is there time to “de-projectize” the Div 01 and make them non-project specific. Then provide [sell? or whatever] them to the owner as "masters’ for use as they see fit [and under your advice to make them project specific when so used]?
In that, make sure your firm’s name and information is “gone” from the documents [i.e., make them the owner’s docs]!
What if they said “Here. Use these as a guideline when you develop your own Division 01”? Would that make a difference?
David’s quote implies “Use these = Copy these”; my modification implies that the owner has already made certain decisions that might be applicable to future projects, and those decisions have been recorded in School A’s Division 01.
Shouldn’t the owner have some benefit from already deciding basic procedural things on School A: payments, submittals, meetings, closeouts. All those wouldn’t vary much or at all for School B or C, because they deal with the owner’s preferred process.
I guess the right way is to have an Owner’s manual for design firms listing their standard process for those parts of Division 01 that they have a direct bearing on, but somehow it doesn’t bother me to be given a project manual to use as a guide (or for an owner to give another a/e one of my project manuals,for that matter).
I think all would come down squarely on the side of opposing cold copying on legal and moral grounds and all would agree that Division 01 needs to be in part specific for each job, but how do you feel about using another project’s PM as a guideline for those parts of Division 01 that wouldn’t change from job to job?
I agree that the legality of it will depend totally on what is in your contract agreement with regards to ownership of the documents. However, if the owner did not pay you to provide a standard division 1 spec for their schools, the owner is being unethical, in my opinion, in using your division 1 specs for other school projects.
Also, the validity of a contract is always contingent on all parties having the same understanding as to what is being agreed upon. If the owner asked for a specific division 1 specification and then told you later, after the contract was signed, that it is really a standard division 1 specification for many projects, the owner just might be invalidating the original contract. (I could be wrong. Im not a lawyer. It seems like common sense though. The law may be whole different animal.)
It might be worth telling the owner that he or she is really asking for a standard Divison 1 specification and then asking for a higher fee for creating it. You might then ask for more time to modify the specs to include more options so that it can better serve a wide variety of possible situations. I’d add a editor’s note in the Summary requiring the architect to modify the spec as needed to meet specific conditions of the actual project.
Of course, as mentioned above, since other architects are being hired for the other projects, it really becomes their responsibility to modify Division 1 as needed to make it appropriate for their office’s construction administration methods.
When I said “use” I meant “use”. We give the Owner Word files that the other architects then use by changing header/footer and maybe doing a few other minor modifications.
I have no problem with the Owner providing other architects with a copy of High School A project manual and to be used as a guide for future projects. Actually I would be flattered if they did. But I do have a problem with us giving away our work for FREE. We are basically writing part of the project manuals without being compensated.
I agree 1000% with Anne! No self-respecting architect would want to use someone else’s specs. The other architects would be put into a strange predicament of being held accountable/liable for documents that they did not prepare.
I have worked on a few projects where the Owner gave me Division 01 specs to bind into the project manual and I unhappily obliged. It was a mess trying to coordinate part of my Division 01 to part of the Owners Division 01. In the end there were problems and the Owner got screwed over by their own documents.
I just thought of something else. Let’s suppose that the Owner gives XYZ Architects my firm’s Division 01 specifications. Let’s also suppose that on Elementary School B project there are serious problems with the Division 01 specs.
If the Owner tries to blame my firm for the mistakes we will say that we only prepared Division 01 for High School A project.
If the Owner tries to blame the other firm, XYZ Architects will probably say that Division 01 was not prepared by XYZ Architects. Since the specs were Owner provided, XYZ Architects are not responsible.