September 25, 2006

Bidding

Transfer of intellectual property rights concerns design industry

More talks needed on Infrastructure Ontario’s proposal to pay compensation to losing bidders for detailed design, bid prep work

PATRICIA WILLIAMS

Staff Writer

TORONTO

Ontario’s design industry plans to take Infrastructure Ontario “up on its offer” to discuss a controversial proposal that would require transfer of intellectual property by project bidders.

The agency announced late last week that it was prepared to pay partial compensation to losing bidders for detailed design and bid preparation work incurred in proposals for its design-build-finance-maintain (DBFM) projects.

The agency said the value of a design and bid fee would be based in part on the size and complexity of the project.

However, payment of the fee will be conditional on transfer to the province of the intellectual property rights.

“I would have preferred to have had this discussion (with the agency) before the announcement,” John Gamble, president of Consulting Engineers of Ontario said Monday.

“But having said that, Infrastructure Ontario has already indicated that it would be willing to discuss this issue.

“We will certainly give them the benefit of the doubt and take them up on their offer.”

Gamble, whose association represents some 250 consulting engineering firms across the province, told Daily Commercial News that intellectual property is a design firm’s stock in trade, its major currency.

“Even under a traditional procurement model, we resist the notion that designers should have to transfer such property,” he said.

A second concern, he said, “is that if someone else takes ownership of the intellectual property and a situation arises down the road, it very much muddies the liability waters.”

Gamble said the industry “needs to understand the Crown’s interest in acquiring intellectual property rights for designs they presumably aren’t even interested in using.

“This warrants a lot more discussion,” he said. “There are a lot of implications for the design industry.

“If there is a public policy reason for this, then let’s have some discussion around this and come up with a solution that is reasonable for everyone.”

David Craddock, president of the Ontario Association of Architects, could not be reached immediately for comment. However, the OAA is believed to harbour similar concerns on this score.

Gamble commended Infrastructure Ontario for introduction of partial compensation to shortlisted bidders on its DBFM projects. The projects typically are worth more than $250 million each.

“This is very positive and certainly reflects best practices that you see around the world,” he said. “This has the potential to result in much better submissions.

“When you are dealing with public infrastructure, better designs mean a better health care system, a better justice system, better transportation and a cleaner environment.”

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