Owner Reusing Division 01 Specifications

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Author Message David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 779 Registered: 03-2002 Posted on Monday, January 22, 2007 - 07:28 pm:    I am going to start to sound like Jerome here.... 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. Thanks! Ronald J. Ray, RA, CCS, CCCA Senior Member Username: rjray Post Number: 65 Registered: 04-2004 Posted on Monday, January 22, 2007 - 08:20 pm:    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. Steven Bruneel, AIA, CSI-CDT, LEED-AP Senior Member Username: redseca2 Post Number: 11 Registered: 12-2006 Posted on Monday, January 22, 2007 - 09:13 pm:    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. Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 220 Registered: 01-2003 Posted on Monday, January 22, 2007 - 10:10 pm:    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. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 293 Registered: 05-2003 Posted on Monday, January 22, 2007 - 10:37 pm:    David Be afraid...be very afraid. Sorry, I had to comment in some way, since my name was mentioned and we struggle with this problem on many of our projects. Russell W. Wood, CSI, CCS Senior Member Username: woodr5678 Post Number: 73 Registered: 11-2003 Posted on Tuesday, January 23, 2007 - 09:10 am:    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. John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 641 Registered: 03-2002 Posted on Tuesday, January 23, 2007 - 09:17 am:    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!) Richard Howard, AIA CSI CCS Senior Member Username: rick_howard Post Number: 108 Registered: 07-2003 Posted on Tuesday, January 23, 2007 - 09:22 am:    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.” Russell W. Wood, CSI, CCS Senior Member Username: woodr5678 Post Number: 74 Registered: 11-2003 Posted on Tuesday, January 23, 2007 - 09:34 am:    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. Anonymous   Posted on Tuesday, January 23, 2007 - 10:17 am:    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? Richard Baxter, AIA, CSI Senior Member Username: rbaxter Post Number: 35 Registered: 12-2004 Posted on Tuesday, January 23, 2007 - 12:40 pm:    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 owner’s instructions and create division 1 to the owner’s liking. The owner will undoubtedly pay the price of not taking advantage of the architect’s expertise – but that’s the owner’s 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 architect’s hands by not allowing the architect to specify the contractor’s requirements during the construction. Nathan Woods, CCCA, LEED AP Senior Member Username: nwoods Post Number: 155 Registered: 08-2005 Posted on Tuesday, January 23, 2007 - 12:48 pm:    That's a very sensible distinction Richard. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 780 Registered: 03-2002 Posted on Tuesday, January 23, 2007 - 03:24 pm:    Richard, 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." Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 433 Registered: 07-2002 Posted on Tuesday, January 23, 2007 - 03:58 pm:    ... 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. Ralph Liebing, RA, CSI Senior Member Username: rliebing Post Number: 525 Registered: 02-2003 Posted on Tuesday, January 23, 2007 - 03:59 pm:    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]! George A. Everding, AIA, CSI, CCS, CCCA Senior Member Username: geverding Post Number: 247 Registered: 11-2004 Posted on Tuesday, January 23, 2007 - 04:10 pm:    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? Richard Baxter, AIA, CSI Senior Member Username: rbaxter Post Number: 36 Registered: 12-2004 Posted on Tuesday, January 23, 2007 - 04:29 pm:    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. I’m 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. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 781 Registered: 03-2002 Posted on Tuesday, January 23, 2007 - 04:55 pm:    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 Owner’s Division 01. In the end there were problems and the Owner got screwed over by their own documents. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 782 Registered: 03-2002 Posted on Tuesday, January 23, 2007 - 05:09 pm:    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. So who is responsible? John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 642 Registered: 03-2002 Posted on Tuesday, January 23, 2007 - 05:32 pm:    The Owner. Ronald L. Geren, RA, CSI, CCS, CCCA, SCIP Senior Member Username: specman Post Number: 385 Registered: 03-2003 Posted on Tuesday, January 23, 2007 - 05:35 pm:    I agree with John...the owner. Just like other owner-provided documents (surveys, geotechnical reports, etc.), the architect can rely on that information as being accurate and appropriate for the intended use. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 434 Registered: 07-2002 Posted on Tuesday, January 23, 2007 - 07:18 pm:    absolutely. your (David's) contract for services should state that the documents provided are an "instrument of service" for the one project that you have a contract for. the owner is responsible for any dumb thing they do with them after that. (and if they have good legal counsel and listen to them.....) Robert E. Woodburn Senior Member Username: bwoodburn Post Number: 149 Registered: 01-2005 Posted on Wednesday, January 24, 2007 - 11:26 am:    Do state regulations affect this? Generally, designers can seal only work done under their supervision, and may not, except under certain conditions, seal documents prepared by others. State rules may require documents prepared by various professionals to say who did what. In Texas, for example, “If only a portion of a document was prepared by an Architect...the Architect’s seal may not be affixed to the document unless: (1) the portion of the document prepared by the Architect...is clearly identified; and (2) it is clearly indicated on the document that the Architect’s seal applies only to that portion of the document prepared by the Architect...” Similarly, the engineering rules say, “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.” These appear to require something like the following with the seals (in this example, placed below “Issued for Construction” (etc.), and above a listing of the professionals-of-record, and the numbers of their respective divisions and sections): “Specifications divisions and sections are listed below with the professional-of-record responsible for their preparation, under whose seal and signature each respective portion is issued for the purpose stated above. Seals and signatures do not apply to documents that are bound herein but prepared by the Owner or others instead of the professionals-of-record named below; these may include, but are not necessarily limited to, Bidding Requirements, Contract Forms, Contract Conditions, General Requirements, and other documents such as geotechnical reports.” These rules appear to require a disclaimer of responsibility for documents prepared or furnished by the Owner or others. However, I don’t recall any discussion on that-–or its implications... Robert E. Woodburn Senior Member Username: bwoodburn Post Number: 152 Registered: 01-2005 Posted on Friday, January 26, 2007 - 09:51 am:    So, no further posts on this topic in well over a day...Sorry, I didn't mean to kill off the discussion. Does the fact that these regulations are substantially at odds with the "traditional" approach have anything to do with that? Or an apparent lack of interest by professionals in compliance, or an apparent lack of interest by agencies in enforcement? Is this getting into "unmentionable" territory? Ralph Liebing, RA, CSI Senior Member Username: rliebing Post Number: 531 Registered: 02-2003 Posted on Friday, January 26, 2007 - 10:11 am:    If you wish to avoid most all of the ramifications, make a separate contract with this client to provide them with "matrix" level Dvision 01 documents, that are not project specific. Include some "fill-in" items that they or their other architects will have to resolve before the work has validity and is usable. Include nothing that identifies your firm, and in fact "insist" that your client add their information as the responsible parties [you could insert this on the documents you deliver to them]. Their architects then can modify that to their info on a project by project basis. My opinion is, DO NOT allow simple "re-use" of your project specs!!!! No way! Never! David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 790 Registered: 03-2002 Posted on Wednesday, January 31, 2007 - 06:48 pm:    I just got word from the higher ups in my firm that the firm is going to sell our Division 01 sections to the school district to reuse on their upcoming building projects. Oh well. You can save somebody if they don't want to be saved. John Regener, AIA, CCS, CCCA, CSI, SCIP Senior Member Username: john_regener Post Number: 257 Registered: 04-2002 Posted on Thursday, February 01, 2007 - 12:30 am:    David Axt: I don't think we architects understand selling. A real-life example: I did a student residences project at UCLA. The residence hall administrator was responsible for food service for all on-campus residences. A movie company wanted to use one of the cafeterias to shoot a movie about winter Olympics. So, the administrator "sold" the use of the cafeteria to the movie studio, gave have of the fee to the students and told them to go find somewhere else to eat (it was enough $$) and put the remainder in the student recreation fund. [Sale No. 1] The movie company decided that they needed food on the serving line where they were shooting (props). So, the administrator had a full meal cooked and placed on the serving line. [Sale No. 2] Then the movie company said they needed to feed their cast and crew and could they get some food. The administrator took the food off the serving line and served it to the cast and crew [Sale No. 3] The meal was sold three times. Everyone was happy and the student recreation fund overflowed. THAT'S selling (and chutzpah)! The point: If Division 1 specs are customized to the school district's requirements for construction contract administration and the district's General Conditions, go ahead and sell them. And sell other customized sets of Division 1 to other school districts and other clients. If someone is foolish enough to use the Division 1 specs as they were not intended, well maybe they will learn some lessons. AND the architect will have sold the "work products" multiple times and raised the standard of care for Division 1 in the community (assuming the architect writes Division 1 well). Ron Beard CCS Senior Member Username: rm_beard_ccs Post Number: 169 Registered: 10-2002 Posted on Thursday, February 01, 2007 - 02:36 am:    If a Division 1 is sold, I assume in an "as is" condition, can one really escape all future liability? David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 791 Registered: 03-2002 Posted on Thursday, February 01, 2007 - 02:49 pm:    John, I understand your point.....but how would you feel if the Owner reduced your specification preparation fee because the Division 01 sections were already prepared by another architect? How would you feel if got in trouble for Division 01 specifications that you did not produce? Why stop at Division 01 specifications? I fully expect the Owner to ask us to provide electronic copies of the rest of the project manual to be reused on other projects. Bob Woodburn Senior Member Username: bwoodburn Post Number: 154 Registered: 01-2005 Posted on Thursday, February 01, 2007 - 04:28 pm:    Some Owners do... David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 792 Registered: 03-2002 Posted on Thursday, February 01, 2007 - 05:20 pm:    .....and drawings. Who needs architects? BTW, what would a lawyer say if you asked him/her for an electronic copy of your parents' will so that you can write your own will? Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 442 Registered: 07-2002 Posted on Thursday, February 01, 2007 - 06:22 pm:    you can write (or have your attorney write) a hold harmless clause that absolves you from responsibility for what the owner does with the documents. its how I was able to write masters for the University of Washington and not have my former employer on the hook for every project for the next three years. its also how consultants write masters for Starbucks, Marriott corporation and any host of other retail/commercial operations. it comes down to who is legally responsible for the documents and that is the person who stamps the documents. if they want to take on the liability of using someone else's documents, then that is between them and their insurer. (as for wills: you can write your own will; you still have to file it when its probated, and pay the same fee) George A. Everding, AIA, CSI, CCS, CCCA Senior Member Username: geverding Post Number: 248 Registered: 11-2004 Posted on Thursday, February 01, 2007 - 06:29 pm:    Re: the will thing... it's a moot point whether you have it electronically or not, because, if you want to copy it... "Where there's a will, there's a way." (Sorry, couldn't resist) David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 794 Registered: 03-2002 Posted on Friday, February 02, 2007 - 12:23 pm:    What would an attorney do?.....I asked one. ************* "Let me alter your hypothetical slightly, because no lawyer would give anyone a copy, paper or electronic, of someone else's document unless the someone else instructed the lawyer to do so. But a more realistic hypothetical would be: What would a lawyer do if a client asked for an electronic copy of his own will (that the lawyer had prepared) so that he could use it to write his wife's or child's will? No lawyer would do so knowing that it was going to be used for that purpose. First, from a practical standpoint it's a bad idea because the wife or child may have different circumstances that suggest different will provisions. Second, it would be assisting someone in the unlicensed practice of law. What if a client asked for an electronic copy but didn't say why? I still think most lawyers would say no. Personally, I never give out electronic copies of my documents, even when there is a practical reason to do so, such as when I would love for the client to input data or make corrections themselves. My overriding concern is that it invites the realistic possibility that the document will be altered by the client, accidentally or on purpose, in ways that could be difficult to sort out later if/when there are problems. What if they say "we need an electronic version because people will need it on their laptops"? I give them a pdf file. We use Adobe Acrobat for that every day around here. I have no doubt that there are computer wizzes who know how to alter pdf files, but I don't think my average client does, and if they got a wiz to do it, well then they would be intentionally altering my document and would know that they are doing it. There is little I can do to protect against intentional forgery." Lawrence R. Pilon, Esq. Hodes Keating and Pilon Chicago, Illinois