Hello, we put together a basic site plan and submitted to Planning. While the application was waiting to be reviewed (the queue can take 3 months) we hired a contractor that provided architectural services, under the assumption that their services were provided in house. Turns out they went to a 3rd party and any change took weeks to receive. We paid the contract amount with the understanding that they would continue to make corrections as required by Plan Check. Now that we have the corrections the guy we hired is not responsive and has missed deadlines by months. We have hired a new architect to incorporate the corrections so that we can move forward. The first guy is refusing to hand over the CAD files. Note, we provided the original draft plans to the contractor in the first place, so I'm not sure he can call it intellectual property. Further, the plan was for pre-fab buildings , so building design also wasn't intellectual property. Do we have a right to the CAD files as the guy was paid his full contract amount but is not performing.
Non Sequitur
Jan 25, 19 11:04 am
Unless it's stipulated in your contract, you do NOT own any of the consultant's CAD files. Take your loses and take greater care next time you consider outsourcing work.
LAPermits
Jan 25, 19 2:59 pm
Yes, I'll definitely be more wary moving forward.
Bloopox
Jan 25, 19 11:18 am
Many architects routinely refuse to release CAD files to contractors or owners, choosing only to provide paper drawings or pdfs or image files. CAD files created by that architect are instruments of service belonging to that architect. There are potential liability issues associated with providing alterable files to anybody - it's not necessarily in the best interest of a fired architect to hand his CAD files over to the next guy that the former client goes to. Also it doesn't sound like you had any contract directly with that architect in the first place, so you have pretty much no rights to anything at all from him. If the contractor you hired had a contract with that architect that specifically states that the architect would provide CAD files, then that contractor may have a right to them - it's unlikely but possible - it depends on other terms of that contract. In any case that's a matter to be fought between that contractor and the architect. You only have standing with the contractor, not with the 3rd party architect.
LAPermits
Jan 25, 19 3:04 pm
Interesting distinctions. So with our contract with the contractor, and his agreement with the draftsman, and who knows if an architect was even involved... that's a lot.
There was a point (before we fired contractor) when we needed the CAD files to provide to a landscape architect so that they could develop their plan. We also incurred double costs for them having to create CAD files from scratch. It just doesn't make sense that every team member that relies on CAD would have to start from scratch.
As a minor point, the guy was never going to be doing any site work, only plans.
SneakyPete
Jan 25, 19 3:07 pm
Be more careful with your contracts. Keep in mind that the more restrictions you add the less likely you'll find anyone willing to do the work. Sounds like you've gotten exactly what you paid for: cheap labor.
Steeplechase
Jan 25, 19 3:20 pm
This is why you should have hired an architect in the first place. In the typical arrangement, the owner doesn’t individually hire the different disciplines, they are hired by the architect as consultants. That means they would be sharing information like CAD files. You’re really not going to get much sympathy. You tried to do an end run around our profession and got screwed, but want us to now freely help fix it.
LAPermits
Jan 25, 19 4:01 pm
Not really, I met the guy as the "architect" on another project. Didn't know he wasn't one until it was time for plans to move forward.
Fivescore
Jan 25, 19 4:11 pm
If you have anything in writing from the fake architect in which he identifies himself as an architect, you could send that to the licensing board. Again, that's not going to get you the CAD files or a refund - it will just get the fake architect's hand slapped and a potential fine - but maybe that will make you feel like you did something. You've got no leg to stand on about the CAD files. By your own description of the contract they were never in it.
LAPermits
Jan 27, 19 1:59 am
Very helpful, thank you.
Fivescore
Jan 25, 19 11:28 am
Agree. There's no reason or incentive for someone you fired to give you CAD files. Give your new architect the same "draft plans" for pre-fab buildings that you started from last time. He's going to need to make new CAD files.
SneakyPete
Jan 25, 19 11:56 am
This is a question for your lawyer.
Wilma Buttfit
Jan 25, 19 2:19 pm
What does your contract say?
LAPermits
Jan 25, 19 3:07 pm
It's a bare bones 1 page contract that calls out architectural plan development, site, elevations, electrical and sewer. It also says permitting, and he has not incorporated the plan check corrections to get a permit. If we have to pay someone else to re-create the CAD files, shouldn't I be credited back that amount? The guy was paid for the work, and really overpaid for not incorporating corrections.
Fivescore
Jan 25, 19 3:57 pm
Why had you paid him already for work that wasn't complete yet? Usually you'd pay a retainer, then he'd invoice you on some agreed-upon basis (by phase, by task, by month, whatever). It sounds like you paid him for work he hadn't done yet, and then fired him. As for the CAD files: they're not part of the deliverables that you list. In other words you didn't agree to be given the CAD files. The CAD files are just the tools by which the architect or draftsman was going to create the documents for permitting. The CAD files belong to the person who created them. The permitting documents themselves would have belonged to you - but you fired the contractor before they were complete.
LAPermits
Jan 25, 19 4:37 pm
It's the old hindsight is 20/20 adage.
LAPermits
Jan 25, 19 2:57 pm
It's a bare bones 1 page contract that calls out architectural plan development, site, elevations, electrical and sewer. It also says permitting, and he has not incorporated the plan check corrections to get a permit. If we have to pay someone else to re-create the CAD files, shouldn't I be credited back that amount? The guy was paid for the work, and really overpaid for not incorporating corrections.
LAPermits
Jan 25, 19 2:58 pm
To add to that, it turns out the guy was using a draftsman and was going to get an architect to stamp for draftsman.
Fivescore
Jan 25, 19 4:03 pm
In some states that's legal, and in others it is not. If you're in a state that requires that the draftsman work under direct supervision of an architect, and if the architect did in fact stamp drawings that were done by an unsupervised drafter, then you could report the architect to the licensing board. This has nothing to do with you getting CAD files though. At worst the architect would get fined for illegal plan-stamping and get a mark on his file. The licensing board has no power to resolve civil disputes.
You could take the contractor to small claims court - since he's the only one with whom you had a contract - but I don't think you'd get much since you fired him before the work was complete, and you had no contract requiring anyone to hand over CAD files anyway. At best the court might force the contractor to hand over paper copies of the incomplete drawings, if you don't already have those, and/or refund some small amount if you paid him in advance for work that he didn't do. In any case you're going to have to get somebody else to do new CAD files - nobody owes you those.
SneakyPete
Jan 25, 19 3:02 pm
You're confusing what is "right" for what is "legal". What they were doing or were going to do has no effect on the legal arrangement between you and the other party unless it was contained within your contractural agreement. Unless a lawyer can make that case in an arena where it matters. Sure it pisses you off, but it's not likely to matter a hill of beans.
( o Y o )
Jan 25, 19 5:10 pm
only one side of the story here
Flatfish
Jan 25, 19 5:19 pm
Everybody who has answered already is right. But who is it that's refusing to give you the CAD files? If it's the contractor, can you go around him and get in touch with the drafter directly and request the files from him? He doesn't have to give them to you, but if you offer to pay him something for them and to sign an agreement holding him harmless for any inaccuracies within them and from anything that may happen as a result of their use, it's possible he might relent.
That said, your new architect isn't supposed to just take someone else's CAD files and start where the last guy left off. Even if you're located somewhere like New York where he can legally use drawings he didn't draw or oversee, he's still supposed to review and verify everything in them and keep written records of that review. By the time he does that he might as well be starting from scratch anyway, and it's probably going to cost as much as if he had.
LAPermits
Jan 27, 19 2:21 am
I was never able to get direct contact with draftsman or architect. Not name, phone number, n
or email.
poop876
Jan 26, 19 5:26 pm
I never release my cad files be it a good or shitty client!
natematt
Jan 27, 19 2:41 am
What do the standard AIA contracts say about the instruments of service these days?
drfoulk@gmail.com
Nov 2, 23 1:07 am
1990 Architectural Works Copyright Protection Act (AWCPA) was written and passed to ensure the emerging electronic instrument of service was addressed. Repose law in most states holds me responsible for my work for 10 to 20 years, no matter what any contract says. Having complete control over alterable material is important; 9 years later a flashing leaks and architect #2 claims it was designed by architect #1, with no way for the first architect to prove the point in time the electronic file was altered. So it is unfortunate but a fact of practice we can't give the next guy the files. All of us are so busy nobody is trying to leverage work by holding BIM files hostage, there is no percentage in that.
Use a licensed architect, and use AIA original documents. The result is worth it.
smaarch
Nov 9, 23 10:14 pm
My best advice is to move on. And for mostly practical reasons. Unless contractually stated, there is no obligation for the "design professional" (quotes are deliberate as their may be some legal implications here) to hand over digital files. Handing over digital files contains a lot of liability....been there and own the tee shirt. Accepting them also contains liability without proper due diligence. Given your post these drawings contains errors. Yes move on. Best with your project.
Wood Guy
Nov 10, 23 10:42 am
Good advice but I have to point out the irony of advising the OP to move on--their post is almost 5 years old.
Hello, we put together a basic site plan and submitted to Planning. While the application was waiting to be reviewed (the queue can take 3 months) we hired a contractor that provided architectural services, under the assumption that their services were provided in house. Turns out they went to a 3rd party and any change took weeks to receive. We paid the contract amount with the understanding that they would continue to make corrections as required by Plan Check. Now that we have the corrections the guy we hired is not responsive and has missed deadlines by months. We have hired a new architect to incorporate the corrections so that we can move forward. The first guy is refusing to hand over the CAD files. Note, we provided the original draft plans to the contractor in the first place, so I'm not sure he can call it intellectual property. Further, the plan was for pre-fab buildings , so building design also wasn't intellectual property. Do we have a right to the CAD files as the guy was paid his full contract amount but is not performing.
Unless it's stipulated in your contract, you do NOT own any of the consultant's CAD files. Take your loses and take greater care next time you consider outsourcing work.
Yes, I'll definitely be more wary moving forward.
Many architects routinely refuse to release CAD files to contractors or owners, choosing only to provide paper drawings or pdfs or image files. CAD files created by that architect are instruments of service belonging to that architect. There are potential liability issues associated with providing alterable files to anybody - it's not necessarily in the best interest of a fired architect to hand his CAD files over to the next guy that the former client goes to. Also it doesn't sound like you had any contract directly with that architect in the first place, so you have pretty much no rights to anything at all from him. If the contractor you hired had a contract with that architect that specifically states that the architect would provide CAD files, then that contractor may have a right to them - it's unlikely but possible - it depends on other terms of that contract. In any case that's a matter to be fought between that contractor and the architect. You only have standing with the contractor, not with the 3rd party architect.
Interesting distinctions. So with our contract with the contractor, and his agreement with the draftsman, and who knows if an architect was even involved... that's a lot.
There was a point (before we fired contractor) when we needed the CAD files to provide to a landscape architect so that they could develop their plan. We also incurred double costs for them having to create CAD files from scratch. It just doesn't make sense that every team member that relies on CAD would have to start from scratch.
As a minor point, the guy was never going to be doing any site work, only plans.
Be more careful with your contracts. Keep in mind that the more restrictions you add the less likely you'll find anyone willing to do the work. Sounds like you've gotten exactly what you paid for: cheap labor.
This is why you should have hired an architect in the first place. In the typical arrangement, the owner doesn’t individually hire the different disciplines, they are hired by the architect as consultants. That means they would be sharing information like CAD files. You’re really not going to get much sympathy. You tried to do an end run around our profession and got screwed, but want us to now freely help fix it.
Not really, I met the guy as the "architect" on another project. Didn't know he wasn't one until it was time for plans to move forward.
If you have anything in writing from the fake architect in which he identifies himself as an architect, you could send that to the licensing board. Again, that's not going to get you the CAD files or a refund - it will just get the fake architect's hand slapped and a potential fine - but maybe that will make you feel like you did something. You've got no leg to stand on about the CAD files. By your own description of the contract they were never in it.
Very helpful, thank you.
Agree. There's no reason or incentive for someone you fired to give you CAD files. Give your new architect the same "draft plans" for pre-fab buildings that you started from last time. He's going to need to make new CAD files.
This is a question for your lawyer.
What does your contract say?
It's a bare bones 1 page contract that calls out architectural plan development, site, elevations, electrical and sewer. It also says permitting, and he has not incorporated the plan check corrections to get a permit. If we have to pay someone else to re-create the CAD files, shouldn't I be credited back that amount? The guy was paid for the work, and really overpaid for not incorporating corrections.
Why had you paid him already for work that wasn't complete yet? Usually you'd pay a retainer, then he'd invoice you on some agreed-upon basis (by phase, by task, by month, whatever). It sounds like you paid him for work he hadn't done yet, and then fired him. As for the CAD files: they're not part of the deliverables that you list. In other words you didn't agree to be given the CAD files. The CAD files are just the tools by which the architect or draftsman was going to create the documents for permitting. The CAD files belong to the person who created them. The permitting documents themselves would have belonged to you - but you fired the contractor before they were complete.
It's the old hindsight is 20/20 adage.
It's a bare bones 1 page contract that calls out architectural plan development, site, elevations, electrical and sewer. It also says permitting, and he has not incorporated the plan check corrections to get a permit. If we have to pay someone else to re-create the CAD files, shouldn't I be credited back that amount? The guy was paid for the work, and really overpaid for not incorporating corrections.
To add to that, it turns out the guy was using a draftsman and was going to get an architect to stamp for draftsman.
In some states that's legal, and in others it is not. If you're in a state that requires that the draftsman work under direct supervision of an architect, and if the architect did in fact stamp drawings that were done by an unsupervised drafter, then you could report the architect to the licensing board. This has nothing to do with you getting CAD files though. At worst the architect would get fined for illegal plan-stamping and get a mark on his file. The licensing board has no power to resolve civil disputes.
You could take the contractor to small claims court - since he's the only one with whom you had a contract - but I don't think you'd get much since you fired him before the work was complete, and you had no contract requiring anyone to hand over CAD files anyway. At best the court might force the contractor to hand over paper copies of the incomplete drawings, if you don't already have those, and/or refund some small amount if you paid him in advance for work that he didn't do. In any case you're going to have to get somebody else to do new CAD files - nobody owes you those.
You're confusing what is "right" for what is "legal". What they were doing or were going to do has no effect on the legal arrangement between you and the other party unless it was contained within your contractural agreement. Unless a lawyer can make that case in an arena where it matters. Sure it pisses you off, but it's not likely to matter a hill of beans.
only one side of the story here
Everybody who has answered already is right. But who is it that's refusing to give you the CAD files? If it's the contractor, can you go around him and get in touch with the drafter directly and request the files from him? He doesn't have to give them to you, but if you offer to pay him something for them and to sign an agreement holding him harmless for any inaccuracies within them and from anything that may happen as a result of their use, it's possible he might relent.
That said, your new architect isn't supposed to just take someone else's CAD files and start where the last guy left off. Even if you're located somewhere like New York where he can legally use drawings he didn't draw or oversee, he's still supposed to review and verify everything in them and keep written records of that review. By the time he does that he might as well be starting from scratch anyway, and it's probably going to cost as much as if he had.
I was never able to get direct contact with draftsman or architect. Not name, phone number, n or email.
I never release my cad files be it a good or shitty client!
What do the standard AIA contracts say about the instruments of service these days?
1990 Architectural Works Copyright Protection Act (AWCPA) was written and passed to ensure the emerging electronic instrument of service was addressed. Repose law in most states holds me responsible for my work for 10 to 20 years, no matter what any contract says. Having complete control over alterable material is important; 9 years later a flashing leaks and architect #2 claims it was designed by architect #1, with no way for the first architect to prove the point in time the electronic file was altered. So it is unfortunate but a fact of practice we can't give the next guy the files. All of us are so busy nobody is trying to leverage work by holding BIM files hostage, there is no percentage in that.
Use a licensed architect, and use AIA original documents. The result is worth it.
My best advice is to move on. And for mostly practical reasons. Unless contractually stated, there is no obligation for the "design professional" (quotes are deliberate as their may be some legal implications here) to hand over digital files. Handing over digital files contains a lot of liability....been there and own the tee shirt. Accepting them also contains liability without proper due diligence. Given your post these drawings contains errors. Yes move on. Best with your project.
Good advice but I have to point out the irony of advising the OP to move on--their post is almost 5 years old.