Today it is increasingly easy to make copies with the click of a button. Music, movies, and photographs are downloaded off the Internet, sometimes illegally. We are raising a whole generation of children who have incredible access to information and the ability to copy it. A national survey published in Education Week found that 54 percent of students admitted to plagiarizing from the Internet. Adults need to set an example for our children by ethical practices in our homes, in our government and our businesses. There is the story of a father who sees his son working on a school project with a new set of magic markers and asks the son where he got them. The son confesses that he stole them from school. The father looks at his son, disappointed, and says, “Son, if you needed markers for school, you should have told me . . . I can take them from the office!” Whether stealing markers or stealing ideas and designs, ethical practices forbid this conduct.
Copying Designs. Ethical issues dealing with unauthorized copying run from using the ideas of competitors, to re-using designs without permission or without compensation, to re-using proposals. The expression, “Imitation is the sincerest form of flattery” does not apply in design-build. Most firms are not at all flattered when someone copies their technical proposals or designs without permission nor when an owner re-uses an innovative design without proper compensation. Fear of unauthorized copying dates back to at least 15th Century Italy, when the famous architect Leon Battista Alberti wrote that an architect should study each building, “and should he find anything anywhere of which he approves, he should adopt and copy it.”1 For fear of copying, the Italian capomaestro or “master builder” Filippo Brunelleschi preferred to work in secrecy, either alone or with two trusted disciples. He rarely committed his ideas to paper and when he did, it was coded in cipher to conceal his designs from his rivals, one of which was Alberti!2
Things have not changed so much over the past 600 years. Today, design-build teams work in secrecy and protect their innovative ideas in hopes of winning the project. Teaming agreements contain confidentiality clauses and the best ones also address ownership and re-use of designs. If an innovative idea is jointly developed, but the team loses the competition, can either member of the team use the idea on a future project? Can an owner use ideas or designs from proposals that were not selected? Most design-build contracts deal with this topic of ownership and re-use of the drawings and of the design. Not surprising the AIA, AGC, DBIA, and EJCDC contract forms, as well as federal government contracts, all deal with the topic differently. Designers want to own and protect their designs, contractors want some control and rights to use the design, and owners want to use what they have paid for.
The sticky ethical issues are whether the owner can revise or re-use a design for another project, or whether the design-builder can use the design with a different architect on a later project. The U.S. Department of Defense standard contract terms are clear: “The Government shall have unlimited rights, in all drawings, designs, specifications, notes, and other works developed in the performance of this contract, including the right to use same on any other Government design or construction without additional compensation to the Contractor.” (See Defense Federal Acquisition Regulation Supplement 252.227-7022 and 7023.) Even more controversial is whether a public owner can use ideas or entire designs from proposals that were rejected.
Public Competitions. Design-build competitions require varying levels of design effort (depending on the bridging documents, if any, furnished by the owner). Payment of a reasonable “stipend” to the unsuccessful teams entices the brightest and best firms to compete. But just what rights should an owner receive in return for a stipend?
Some RFPs on public design-build competitions state up front that all design submissions by the teams become the property of the owner in return for payment of a stipend to the unsuccessful teams. For example, Texas statutes say that in return for a stipend, the state “owns with the unsuccessful proposer jointly the rights to, and may make use of any work product contained in, the proposal”. Tex.Transp. Code § 361.3022(m). Minnesota law goes a bit further and gives the state broad rights and it “may use any ideas or information contained in the proposals . . . for the project or in connection with a subsequent procurement, without any obligation to pay any additional compensation to the unsuccessful proposers.” Minn.Stat. § 161.3426(3). If the proposer wants to prevent such use by the State then the team has to forfeit the stipend. Arizona law is identical. See Arizona Stat. § 28-7365(F)(5).
The payment of stipends (often less than 0.3 percent of the construction cost), never fully compensates the unsuccessful proposers for their efforts. As a result, a public owner might unethically use a design-build competition as a way to get five new school designs far more cheaply than if five architects were hired the traditional way. These laws force a design-build team to choose whether to protect a unique building design or accept a modest stipend. This can place an unreasonable pressure on design-build teams and give the owner a windfall of innovative ideas and designs it can select, in whole or in part, for the pending project or for unlimited future projects. The more ethical approach would be to give the owner rights only to use the se-lected design and allow the unsuccessful teams to recover the stipend and yet protect the intellectual prop-erty they developed during the com-petition without fear that the design will show up on a future project under some other designer’s name.
In a 2002 study done for the New York State Department of Transportation it was found that most public agencies agreed that stipends result in better proposals and are well worth the money spent. “Even if the proposals do not produce useful ideas, the stipend encourages proposers to ‘stay in the game,’ thereby enhancing the price competition.”3 The New York study also found that some agencies pay the proposers only if their ideas are used. Others provided for a share of any value engineering cost ideas to be passed back through to the proposer who provided the original idea, even if not the selected team. This is perhaps the pinnacle of ethical conduct, to compensate a team that is not awarded the contract for innovative cost-savings ideas in the technical proposal which save the owner money.
Using Someone Else’s Proposal or Design. Yet another ethical issue is whether a design that is the result of a collaboration between architect and contractor can be used by either of them on future projects without permission or involvement of both parties. Whose design is it? Teaming agreements should clearly address this topic so there is no confusion or legal action over who owns what. What if an owner or your design-build teammate asks you to use a design obtained from a prior competition, prepared by another design firm, and suggests that you simply “site adapt” it for this project? There are many ethical, not to mention copyright, issues here.
Technical proposals are generally kept confidential by owners; many state laws require this. It would certainly be unethical, and perhaps illegal, for an owner to give a proposal to a competing firm. As outrageous as that sounds, that is what happened in a 1983 NSPE ethics board case. In that case, Engineer B submitted a technical proposal to a county council, which proposal was given to Engineer A by a staff member of the council.4 Without Engineer B’s consent, the second engineer used the technical proposal in developing his own competing proposal. NSPE’s Board of Ethical Review found that Engineer A’s conduct was unethical and that the engineer had an obligation to: (1) seek and obtain Engineer B’s consent before using the proposal; (2) if granted consent, identify Engineer B in all cases of use of Engineer B’s proposal; and (3) negotiate and pay Engineer B “fair and reasonable” compensation for using the proposal. One is curious whether the county employee who gave out the proposal faced any ethical or legal action for revealing the proposal to a competitor.
Be an Original. Trade magazines and newspapers have widely publicized the copyright lawsuit filed by a former Yale School of Architecture graduate over architect SOM’s 2003 design for the twisting Freedom Tower at the World Trade Center site. Now the entire nation is aware that architects and engineers have rights to protect their designs. Designs have value — to the author and to the owner. Ethical practices will encourage innovation and will protect the value of intellectual property by preventing copying, maintaining confidentiality, and by paying reasonable compensation. As American writer Herman Melville once said that “It is better to fail in originality than to succeed in imitation.” Let’s start by promoting originality and submitting fresh, new creative designs for each design-build project. Best practices will protect the value of good design by paying stipends to attract the best in the industry, and not force the teams to forfeit the modest payment to protect their designs.
Endnotes
1 Alberti, On the Art of Building in Ten Books, The MIT Press (1988), p. 316.
2 Ross King, Brunelleschi’s Dome, Penguin Books, (2000), p.19.
3 Design-Build Practice Report, prepared by Parsons Brinckerhoff Quade & Douglas, Inc. for NYS DOT (Sept. 2002), p. 43.
4 Using Technical Proposal of Another Without Consent, Case No. 83-3, NSPE Board of Ethical Review.
G. William Quatman, Esq., FAIA, DBIA, is both an attorney and a licensed architect who practices law with the firm of Shughart Thomson & Kilroy, P.C., in Kansas City, MO. He can be reached at (816) 421-3355 or www.stklaw.com. Mr. Quatman is the 2005 Chairman of DBIA’s Legislative Committee and serves on the Designation Board.