Every year The AIACC asks the California Legislature to make changes to California law for the improvement of the architectural profession and society in general. The agenda for 2013 consists of proposals to improve indemnification conditions for architects, to give architects a tool to ensure that the Qualifications Based Selection law is followed, and to clarify that a person must have permission from an architect to use the architect’s Instruments of Service.
AIACC 2013 Legislative Agenda
The California Legislature returns in January to begin its new session, and faces many challenges and opportunities. AIACC staff is working with AIA Members and our consultants to further develop our proposed legislative agenda for consideration by the Legislature. In developing this agenda, we are keeping in mind how the election results and the economic and political climate affect our chances of success with our agenda.
The agenda was adopted by The AIACC Board of Directors at the November Board meeting, after considering recommendations made by the Advocacy Advisory Committee (AAC). In making its recommendations to the Board, the AAC reviewed the results of the annual member survey for advocacy ideas.
The AIACC’s 2013 agenda consists of the following three proposals:
Instruments of Service
This proposal would clarify that any third party must have written authorization prior to using an architect’s Instruments of Service.
The requirement for written authorization would eliminate gray areas specific to receivership issues (a court appointed receiver is given responsibility to complete a project that has gone into bankruptcy) and allow the architect to stay in conformance with the Architects Practice Act. It would protect architects and prevent unjust enrichment from the unauthorized and non-licensed use of creative work produced by a design professional. Such a state law would establish in no uncertain terms that any third party who desires to use an architect’s Instruments of Service (to complete work produced under a previous agreement between an Owner and Architect) must obtain a non-exclusive limited license via a written authorization or be subject to claims.
The AIACC will attempt to have legislation introduced to limit the obligation of design professionals to indemnify and defend clients to damages caused by negligent acts by the design professional. For practical and political purposes, we likely will limit the scope of this bill to contracts with local public entities.
This is an issue that comes up repeatedly in the advocacy survey, and in private communications with members and attorneys. The AIACC was able to have legislation introduced last year, but we dropped the bill after it was made clear to us it would not pass its first hearing; the Chair of that Committee held the opinion that a solution to the problem did not include a change in state law. Nevertheless, the problem is real and remains a significant concern to firm principals. AIACC staff has met with representatives of local public agencies since we dropped the bill, but so far have been unable to find the common ground needed for a solution.
Clients, particularly public clients, are insisting that architects sign contracts that contain uninsurable indemnification and duty to defend clauses; they are presented as a ‘take it or leave it’ contract. Some of these contract clauses essentially turn the architectural firm into a legal services insurance company for the client. These types of contracts put the very existence of an architectural firm in jeopardy.
This will not be an easy effort. To improve our chance of success, the AIACC will ask its members to participate in an aggressive grassroots campaign in support of the bill.
Qualifications Based Selection
Like last year, the Board instructed AIACC staff to investigate the concept of including language in the Architects Practice Act to prohibit architects from providing a fee during the selection phase of public works, and to sponsor legislation if the idea is feasible.
We were able to get a bill introduced and heard last year, but it failed passage in its first Committee hearing due to the majority of the legislators on the Committee abstaining on the bill.
QBS violations – the asking for a fee during the selection phase of public works – are an ongoing and growing concern of the membership. AIACC staff increasingly is hearing from members that public clients are asking for fees during the selection phase and either selecting based upon the low fee, or demanding the highest ranked firm to match the lowest fee.
Given the economy and the politics of this issue, an effort to directly address this issue by improving the QBS statute is unlikely to succeed. This proposal is a different approach to reach the same goal: stopping the use of fees during the selection phase.
It would give the architect the ability to say “I am violating the law if I provide a fee, and will be subject to disciplinary measures by the California Architects Board if I provide a fee.” It is not intended to harm the architect, though that could happen if an architect does provide a fee during the selection phase, the same as an architect who provides services without a written contract.
Similar laws are in place in Nevada and Texas, and AIACC staff has heard they work well and are supported by those state AIA Components.
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