Should the arbitrators be required to complete the arbitration within a fixed period of time? If the chosen rules do not fix a deadline, such a provision may be a good idea, especially if there is no arbitral institution to help motivate the arbitrators to do their work efficiently. Design professionals should include an escape clause in their contracts, however — such as a provision that the arbitrators may extend the time for cause. If there is no escape clause and the arbitrators miss their deadline, their award, when finally made, could be deemed unenforceable as contrary to the parties’ agreement.
These are just suggestions and some basic rules for design professionals to keep in mind while drafting an international arbitration dispute resolution clause. To be sure, design professionals should have their counsel assist in drafting the contract language.
LEGISLATIVE AND LITIGATION ROUNDUP (continued)
Local ACEC Chapter Working to Change Oregon DOT Contract (continued)
Finally, the ACEC is attempting to secure a “mutual indemnity,” wherein the State would be responsible for indemnifying the AE for liability that the state might cause.
We will keep you posted on the outcome of this discussion. In the meantime, if you would like to weigh in on this issue, feel free to contact the Oregon ACEC chapter. http://www.acecoregon.org/
Qualifications Based Selection Now Required on all State Agency Projects in Oregon
Design professionals in Oregon can now rely on their qualifications rather than being forced to outbid others in order to be retained for certain government projects.
Since January 1, 2006, all state agency and local government projects that cost more than $900,000 and use at least 10 percent in state funding for the project’s overall cost must use a Qualifications Based Selection (QBS) process to retain design professionals.
Until the passage of HB-3272A implementing the QBS process, local governments could retain whatever AE firm they wanted, which oftentimes meant projects went to the lowest bidder. As most design professionals are aware, the bidding of their services is often counterproductive. Now, state agencies and local governments must hire the most qualified design professional for the job.
If a project does not meet the $900,000/10 percent state funding threshold, state agencies and local governments can still use whatever selection process they deem appropriate to retain a design professional. Meanwhile, design professionals should continue to educate local governments and agencies about the value of the QBS procurement selection process.
Federal Court Ruling Keeps Defendants In Copyright Cases Longer
A ruling by a federal court in New Hampshire will make it more difficult for defendants, including design professionals, to obtain an early dismissal from copyright infringement lawsuits.
The 1st U.S. Circuit Court of Appeals upheld a copyright infringement suit against a builder in the case, Timberpeg East, Inc. v. Vermont Timber Works, Inc., 2006 U.S. App. Lexis 21153, finding that a jury could find Vermont Timber Works’ plans – which the defendant said did not play a part in construction of a home – were substantially similar to the plaintiff’s plans.
In that case, the plaintiff, Timberpeg, provided architectural design services for its customers but made its money selling customers packages of construction materials for its design plans. In this instance, Timberpeg met with Stanley Istibitski