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One of the most valuable services architects provide is design, yet some clients or potential clients attempt to obtain design without paying, and many architects willingly oblige. This advice urges architects to avoid providing design services unless they are to receive appropriate payment.
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This note may apply to project opportunities offered by various government agencies for expressions of interest (EOI) where there is little or no remuneration offered. Refer also to the Institute’s suite of EOI and requests for tender procurement guidelines and templates.
Design as part of a proposal
Architects may be invited to enter competitions that are not properly conducted or endorsed by the Institute, to provide some degree of design as part of a proposal to a client, or to provide design and some level of documentation for design and construct tenders.
Whether to enter such competitions or not is a commercial decision for each practice, but it should be recognised that providing the design effectively costs a practice many thousands of dollars, and only one practice can be rewarded with the project.
There are clients who ask for complicated design submissions who clearly do not understand the degree of effort and creativity involved.
The provision of a design proposal without a comprehensive brief or detailed consultations can be counter-productive. The client may prematurely perceive that you have a misunderstanding of the requirements.
Providing a detailed description of the approach to information seeking, client interaction and formulation of a mutually developed brief citing previous experiences, may be more convincing.
Clients who seek design as part of a submission have been known to combine the best features of several designs into the completed project, while others have not proceeded with the project but used the designs for other purposes, such as selling the site or on-selling the project.
Further, an architect's liability does not diminish because a design was prepared without charge.
To help reduce liability, an architect should provide a disclaimer limiting parties to whom the submission is directed to the immediate client. Refer Acumen note Common risks for architects for more detail about this issue in the section 'Liability for free advice'.
Copyright and moral rights
Where clients mix and match designs to create a composite solution, the rights of its principal designers may be overlooked. Architects should ensure that their creative and moral rights are protected – perhaps by including an appropriate standard statement in their commission.
This can apply to the two-staged engagement process of an architect where the design work of the first appointed architect is ‘retained’ by the client for use in subsequent stages of design.
Refer Acumen notes Copyright and Moral rights.
Fee bidding
Similar problems are created by clients who seek fee bids from a group of architects and then try to select the architect for a project based on a comparison of dissimilar services, levels of skill and creative ability. This is of particular concern when a tender process is adopted by government or semi-government organisations, as they generally accept the lowest tender.
Tendering can work well, but only when all tenderers are offering to provide exactly the same product. Refer Institute Guidelines: Expressions of interest and requests for tender for architectural services.
Recommendations
Avoid providing design services unless you are to be paid. For consideration of pro bono work or reduced fee services, refer Acumen note Pro bono or reduced fee service.
Encourage clients who seek design as part of a submission to recognise how valuable these services are and to make the selection based on qualifications, ability, resources and experience.
Encourage clients to understand that a successful design is the result of an interactive relationship between the architect and the client and that it also depends on a complete and detailed brief.
If obliged to participate in low up-front fee design, or speculative design, ensure there is at least a bonus provision if you are successful, to take into account the risk of not gaining the commission; and ensure that you do not forgo the copyright in your design irrespective of whether you win or lose the project.
Disclaimer
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