Designers Should Really "Own" Their Designs

There are two sides to this coin. The first, and obvious, is in reference to their copyright ownership. Architects do indeed 'own' their designs placed on 'paper'; the tangible medium.

I've noticed, for the past several years, that when owners use design-build delivery (or other alternative deliveries) they want to 'own' the designs of competing design-build teams included with their proposals. The owners explanation usually goes something like this: "in consideration of a stipend we want to have rights to, or own, the designs submitted by various teams short-listed in the competition. Sounds logical, but in a deeper analysis one sees that this transaction really doesn't move the owner to the "end game"; the creation and occupancy of a building project.

Designs have intrinsic value. They are a prescribed 'solution' to the owners stated 'problem'. Granted, there are likely many solutions to any given problem, but each unique solution has value in proportion to how the owner understands the 'design' solves the stated problem...that's point one. Second point; 'purchasing' the ownership of various design solutions (all preliminary at best) on a belief that they can combine and contribute to the owner's pursuit of the ultimate solution serves neither the owner nor the design-build team. The owner ends up with a "bag" of unused designs and the designer is placed in the business of selling 'preliminary designs'; not the goal of either party. Owning the design via a stipend does not serve the owner (other than the misguided justification for the expenditure of stipend money) and devalues the craft of the designer.

Owners need to entice the marketplace, not manipulate it. Stipends offset the cost of the owner's design-build competition so as to attract the best teams in the marketplace. And designers need to protect their primary source of value, their design ideas, and not place them in a 'parts library'. The 'design', and its process, are not share ware.

This approach to ownership does two things. It supports and maintains the integrity of the design-build competitive process by not devaluing the non-selected design-build teams, and the integrity of the design-build competitive process yields the best project outcome for the owner by securing the interest of the marketplace's best teams.

Side two of the 'coin' is accountability for the ownership etched in side one of the 'coin'. Once the non-selected design-build teams have exited the competition with their ownership rights intact and their pocket full of stipend money, the owner moves into a contract with the selected design-build team. Alas, we can now truly test "ownership".

If you follow this blog regularly, you know I believe in 'Design-Build Done Right' as defined by the DBIA. In other words, using a performance-based statement of work (PBSW). Since the PBSW is the basis of the contract (not the plans and specs), the evolving design must bend to the direction of the PBSW, not the other way around. The design-builder is, by contract, bound to satisfy the PBSW in delivering the project. In turn, this means the plans and specs evolved by the design-build team must satisfy the PBSW...all clear?

So if there exists any errors, conflicts, ambiguities, omissions, or general 'screw ups' in the plans and specs developed by the design-build team, guess who 'owns' them? The design-builder. This is how a well developed, clear, and comprehensive PBSW combined with the owner NOT directing the design and construction decision-making mitigates the owner's project risk. If the design-builder wants to own the design, then they must 'own' the design, including any errors, conflicts, ambiguities, omissions, or general 'screw ups' contained in said design.

To the point...if the owner is NOT directing the decision-making that produces the plans and specs in response to the PBSW (as agreed by contract), and the design-builder is bound to satisfy the owner's PBSW (as agreed by contract) then 'accountability' for the plans and specs resides solely with the design-builder...the design-builder 'owns the design' along with its potential flaws and must correct them as needed to satisfy the owner's PBSW.  This is the equitable swap that is made: the owner turns over control of design decision-making (note: not control of the PBSW) in exchange for zero change-orders; corrections to the plans and specs in order to maintain compliance with the PBSW are the realm of the design-builder.

I know...for some owners out there, this is heresy...give up control of the plans and specs? Keep this in mind, the owner controls the Performance-Based Statement of Work, and the 'metrics' contained therein are unavoidable requirements of the contract. Better yet, a good PBSW defines what the project must DO (its performance) and not what the project must BE (the plans and specs)...in the end, if the project does not perform the contract is not satisfied.

Now go out there and let the designers "own" their designs.