by Michael P. Ingardia, P.E., President of Systems Management Consultants, Inc.,

Today, many clients of engineering and architectural design firms demand that designers' CADD files (and other documents) be delivered as part of the contract requirements. These delivery requirements represent a potential professional liability risk as well as a potential impact on traditional document cost estimates and parameters. The design professional is urged to fully understand and address these issues before agreeing to scope, schedule and compensation in the design services agreement.

There are several key points that the prudent designer should address with the client while discussing the project's scope of work, schedule and fee.

What does the client really want? Make sure you completely understand why the client wants your files. Does the client want to edit them, incorporate them with the work of others, derive construction quantities, keep them as a permanent record etc.?

Delivery to other parties: Make sure you understand who is to use the files and do not deliver them to anyone with whom you do not have a contract or agreement covering the delivery of these files. Your agreement with your client or with other parties should clearly state the terms and conditions under which the files may be used. The agreement should also have a "hold harmless" clause against any subsequent use or modifications of the files.

Project archive files: electronic files are not readable forever. They have a very limited life expectancy. Media failure may occur and new releases of the software may not be fully compatible with older releases of the same software product. In addition, software applications change over the years.

Compatibility: do not rely on the claims of translation software to fully translate files from one program's format to another. Verify all file translations even if the specifications of the first system have a one-for-one match with the specifications of the second system.

File security: document your electronic deliveries and make sure that the contract establishes that the sealed mylars or printed documents govern over electronic files. Any electronic file can be changed as soon as the other party receives it and you have no control over who has access to these files and how copies are made.

Electronic seals and signatures: simple rule: Don't! It is also a good idea to remove your name and title block from all electronic files delivered to your client or other third parties.

File deliveries from clients: make sure you understand the accuracy and content of all files delivered to you from the client. Make sure your contract states that the client is responsible for the accuracy of these files or include a scope of work to verify the accuracy of the files. Make sure you have an adequate budget and schedule to review and edit these files if necessary to make the files readable and usable with your system.

File deliveries to clients: make sure that the contract defines exactly what files and format are required to be delivered to the client, and when. Make sure you understand the impact on scope, schedule and compensation of these delivery requirements, especially if the delivered files must conform to the client's format and organization specifications. The contract should also define ownership of the files, an acceptance period by the client and who has the right (or limitations) to edit and use the files.

The agreement should have an "indemni- fication/hold-harmless" clause for any subsequent use or modification of the files beyond the original design as submitted in print.

Summary: New contract delivery requirements require new contract terms and conditions. Do not simply agree to turn over your files at the end of the project and think that the effort to do so is minimal because you are going to do the work "on the computer" anyway. Conforming to the client's format and organization specifications may take many more hours than you have budgeted in the project's proposed fee. Your total lack of control over the files once delivered to your client could expose your firm to potential professional liability risks not originally considered. Addressing these issues is time well spent during the proposal and contract negotiating phases of a project.

The author, Michael P. Ingardia, P.E., is president of Systems Management Consultants, Inc., 14109 Overland Park, KS, 66223 Tel: 913- 681-1530 E-Mail: mike@@sysmgmt.com. The original article appeared on the Design Professionals Insurance Corp. (DPIC) Website at www.dpic.com/englp1.htm which contains other articles of interest on Professional Liability for Engineers and Architects. The author has written a book on this important subject entitled "Contracting for CADD Work: A Guide for the Design Professional." It may be ordered from Systems Management Consultants, Inc.