I have a 100,000sf warehouse project in NJ with a client that made many changes over the course of the project, and was very difficult from day one to get payment for my work. I broke ties with them after they finally paid me, and gave a former employee the task of doing the Construction Administration. I don’t believe they have applied for a permit yet.
They now want changes made and they want me to give my former employee authority to make the changes. I don’t necessarily have a problem with this, except I think someone should pay for the rights. I will get my insurance companies input and lawyers input on liability. But what should I charge to release the BIM files?
The amount is up to you. Your firm owns the drawings, not the owner.
On a related note, we NEVER release BIM files to a client or another architect unless it's been stipulated in our contract. This contract has language that protects us form being sued for errors in our BIM.
You say you got paid finally. Presumably, you've done nothing further without knowing payment was forthcoming. If so, I'm not sure why you need to be paid further to hand off the project.
Just give your blessing, relinquish any professional responsibility to it, and say hallelujah they are someone else's problem. And notify the jurisdiction that you are not the responsible professional, just in case. If they need digital docs beyond the pdf's, just get a written waiver in place about responsibility for all dimensions, notes etc. Is the consultant team paid up? Are they even willing to move to the former employee?
My guess is your liability is low since it never went to permit or bid (ie unfinished design work).
I have to disagree with this. An architects drawings are a product of our services. To provide them to a client is an additional fee. Unless noted in your contract BIM (or cad) files are NEVER included in the product to be given to the client. You need a contract with the owner that you will not be liable for anything to do with the project or the BIM. This alone is worth some additional fee to accommodate the time and expense you incur.
FYI: when providing BIM to a client you liability is not low. Especially with what little has been shared about the client.
The fee to transfer the work is probably best thought of and justified as lost profit potential from the CA phase services. If you decide to do it make sure that you get a law talking dude to give you some language around indemnification and the successor architect's responsibilities.
Jul 1, 24 5:12 pm ·
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Wood Guy
I have heard from a lawyer and architect that regardless of the language used, it's not possible to remove your liability if you share a working file with someone else.
Our lawyer and insurance says different. Obviously, you can always be sued. The idea is to have a contract that once litigation actually moves to trial that the plaintiff will have a very hard, if not impossible time proving you were responsible or negligent.
Jul 2, 24 5:30 pm ·
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Janosh
Exactly - the idea isn't just about limiting liability, it's also to disincentivize someone making a claim by raising the burden of proof and cost to pursue.
I think how and why a contract was ended determines whether the owner or architect has a legal right to the "instruments of service" per standard AIA contracts?
I only know this because the firm I'm currently with makes it very clear in proposals and contracts that BIM and AutoCAD files are not included. If the owner wants them then they need to sign an additional contract / waiver and pay us an additional fee.
On very important thing to remember is that AIA contract have sections in them about providing BIM / AutoCAD files to the client as part of the deliverables. I've been told that the newer AIA contract has this section included by default. It's up to you if that section stays in the contract or not.
It's complicated so here is a short version - many contractors and owners are using BIM as an 'accurate' model of the project.
This means they are using the locations of elements in the model to coordinate and quantify things. This can be a HUGE issue if your model isn't built to a certain level of detail and accuracy. Basically the owner or contractor can say 'hey that _____ wasn't in the model or wasn't in that location! This is your fault architect, this is an error / omission on your part'.
Current AIA contracts only refer to the 'instruments of services' and define them as the CD's. If you include the BIM section of the contract then it can include BIM as an instrument of service.
Sure, absent a liability waiver. This is no different, though, from handing off plans of a project you did 15yrs ago where a property owner may be using a new architect. Standard protocol is getting a signed liability waiver from the entity receiving the electronic drawings stating that accuracy of contents is the responsibility of the person receiving them, with no implied warranty of accuracy, completeness or code-compliance (fee or not). This should happen when handing any vector file to a GC or sub or another design professional not subbed under a prime contract (unless there is specific contractual responsibility to provide a clash detection product as part of the job).
Additionally, I don't understand charging for a project you aren't going to have any further involvement with. With the liability waiver, the payment is just a big "fuck you", especially if it's quantified at the drafting cost to create them. Why would someone pay for the cost to draft up the drawings AND get no reliability from them? It just compounds their uselessness, no? They would just draw them up themselves and have accuracy at the cost for that effort.
I suppose a minor fee is reasonable if a staffer has to resurrect a file from archive & scrub out the proprietary details & company info (stamps, etc)
We typically don't charge a lot for the clients that ask for our BIM. Just enough to cover our associated costs of distributing the BIM.
There is a cost associated with creating the contract, explaining it to the owner, and 'purging' the model of all non relevant families, annotations, and schedules The reason we 'purge' our BIM before distribution is that our base models have a lot of custom and proprietary items that we've created.
When a past client askes for a BIM so they can have another architect do work on their building we tend to charge bit more for a few reasons. Again, this is just to cover our costs.
This is because the owner would normally have to pay the new architect to model the existing conditions.
The new architect is getting our work product for free. (all those custom, proprietary families, annotations, and schedules that can't be purged)
The time associated with getting the owner and new architect to sign our liability
Jul 3, 24 6:10 pm ·
·
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Fee to Transfer CDs to another architect?
I have a 100,000sf warehouse project in NJ with a client that made many changes over the course of the project, and was very difficult from day one to get payment for my work. I broke ties with them after they finally paid me, and gave a former employee the task of doing the Construction Administration. I don’t believe they have applied for a permit yet.
They now want changes made and they want me to give my former employee authority to make the changes. I don’t necessarily have a problem with this, except I think someone should pay for the rights. I will get my insurance companies input and lawyers input on liability. But what should I charge to release the BIM files?
The amount is up to you. Your firm owns the drawings, not the owner.
On a related note, we NEVER release BIM files to a client or another architect unless it's been stipulated in our contract. This contract has language that protects us form being sued for errors in our BIM.
You say you got paid finally. Presumably, you've done nothing further without knowing payment was forthcoming. If so, I'm not sure why you need to be paid further to hand off the project.
Just give your blessing, relinquish any professional responsibility to it, and say hallelujah they are someone else's problem. And notify the jurisdiction that you are not the responsible professional, just in case. If they need digital docs beyond the pdf's, just get a written waiver in place about responsibility for all dimensions, notes etc. Is the consultant team paid up? Are they even willing to move to the former employee?
My guess is your liability is low since it never went to permit or bid (ie unfinished design work).
I have to disagree with this. An architects drawings are a product of our services. To provide them to a client is an additional fee. Unless noted in your contract BIM (or cad) files are NEVER included in the product to be given to the client. You need a contract with the owner that you will not be liable for anything to do with the project or the BIM. This alone is worth some additional fee to accommodate the time and expense you incur.
FYI: when providing BIM to a client you liability is not low. Especially with what little has been shared about the client.
The fee to transfer the work is probably best thought of and justified as lost profit potential from the CA phase services. If you decide to do it make sure that you get a law talking dude to give you some language around indemnification and the successor architect's responsibilities.
I have heard from a lawyer and architect that regardless of the language used, it's not possible to remove your liability if you share a working file with someone else.
Correct. You can never remove all liability. You can however, remove as much liability as possible so that you won't be liable in court.
Not according to this guy, who is highly experienced and active on another forum, but common opinion seems to differ.
Our lawyer and insurance says different. Obviously, you can always be sued. The idea is to have a contract that once litigation actually moves to trial that the plaintiff will have a very hard, if not impossible time proving you were responsible or negligent.
Exactly - the idea isn't just about limiting liability, it's also to disincentivize someone making a claim by raising the burden of proof and cost to pursue.
Lawyers tend to encourage the idea that the risk of lawsuits is non-zero. It’s good for business.
Yeah good contracts are important but secondary to doing good work, being clear in communication and without exception avoiding bad clients
I think how and why a contract was ended determines whether the owner or architect has a legal right to the "instruments of service" per standard AIA contracts?
The owner has no legal right to the BIM or AutoCAD files. The owner only has a legal right to a copy of the Construction Documents.
You are correct- that's an important distinction.
https://learn.aiacontracts.com...
I only know this because the firm I'm currently with makes it very clear in proposals and contracts that BIM and AutoCAD files are not included. If the owner wants them then they need to sign an additional contract / waiver and pay us an additional fee.
And that is fair!
Whatever you charge, get a cashier's check upfront for the full amount. Only send the files after the check clears.
I would charge the amount equivalent of someone having to redraw from beginning the amount of drawing or work that the cad / bim provides.
On very important thing to remember is that AIA contract have sections in them about providing BIM / AutoCAD files to the client as part of the deliverables. I've been told that the newer AIA contract has this section included by default. It's up to you if that section stays in the contract or not.
“FYI: when providing BIM to a client you liability is not low.“
@chad, could you elaborate a little on the implications
It's complicated so here is a short version - many contractors and owners are using BIM as an 'accurate' model of the project.
This means they are using the locations of elements in the model to coordinate and quantify things. This can be a HUGE issue if your model isn't built to a certain level of detail and accuracy. Basically the owner or contractor can say 'hey that _____ wasn't in the model or wasn't in that location! This is your fault architect, this is an error / omission on your part'.
Current AIA contracts only refer to the 'instruments of services' and define them as the CD's. If you include the BIM section of the contract then it can include BIM as an instrument of service.
Sure, absent a liability waiver. This is no different, though, from handing off plans of a project you did 15yrs ago where a property owner may be using a new architect. Standard protocol is getting a signed liability waiver from the entity receiving the electronic drawings stating that accuracy of contents is the responsibility of the person receiving them, with no implied warranty of accuracy, completeness or code-compliance (fee or not). This should happen when handing any vector file to a GC or sub or another design professional not subbed under a prime contract (unless there is specific contractual responsibility to provide a clash detection product as part of the job).
Additionally, I don't understand charging for a project you aren't going to have any further involvement with. With the liability waiver, the payment is just a big "fuck you", especially if it's quantified at the drafting cost to create them. Why would someone pay for the cost to draft up the drawings AND get no reliability from them? It just compounds their uselessness, no? They would just draw them up themselves and have accuracy at the cost for that effort.
I suppose a minor fee is reasonable if a staffer has to resurrect a file from archive & scrub out the proprietary details & company info (stamps, etc)
We typically don't charge a lot for the clients that ask for our BIM. Just enough to cover our associated costs of distributing the BIM.
There is a cost associated with creating the contract, explaining it to the owner, and 'purging' the model of all non relevant families, annotations, and schedules The reason we 'purge' our BIM before distribution is that our base models have a lot of custom and proprietary items that we've created.
When a past client askes for a BIM so they can have another architect do work on their building we tend to charge bit more for a few reasons. Again, this is just to cover our costs.
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