The regulations of the ongoing competition organized by the Ministry of Development and Technology for the architectural concept of a multi-family residential building with reduced energy intensity raise doubts in the Council of the Małopolska Regional Chamber of Architects of the Republic of Poland and the Team of Conditions of Practice of the Profession at the Council of the Małopolska OIA of the Republic of Poland. The Council has issued a warning against participating in the competition proceedings.
The two-stage competition was organized in cooperation with SARP (No. 023/R/2022) and concerns the execution of an architectural concept for a multi-family residential building with reduced energy consumption. The result of the competition is to be an invitation to negotiate a negotiated contract for the development of a multi-discipline concept, architectural and construction design and technical design for multiple use.
However, the rules of the competition do not meet the principles recommended by the Council of the Malopolska District Chamber of Architects.
content of the appeal
Below we publish the content of the warning written by Piotr Chuchacz (Deputy Chairman of the Council of the Małopolska Regional Chamber of Architects of the Republic of Poland, Professional Conditions Team at the Council of the MPOIA of the Republic of Poland) and Olaf Jasnorzewski (Coordinator of the Professional Conditions Team at the Council of the Małopolska Regional IARP). As the authors say, possible entry into the competition requires making a conscious and responsible decision about the desire to participate in the proceedings, the rules of which may be a source of danger to the public interest and the proper practice of the architectural profession.
The main issues (excerpts from the rules have been marked * ):
purpose of the competition
This competition is promoting the thesis that an architect performs a service only in the development of documentation. This is an erroneous way of thinking about the architectural profession, its responsibilities and the rules contained in the Code of Professional Ethics for Architects - Appendix to Resolution 01 of the Third Reporting National Congress of the Polish Chamber of Architects adopted on June 18, 2005.
The task of an architect - a member of the Professional Self-Government of Architects - a profession of public trust is not only the development of design documentation, or a part of it, but holistic shaping of space including, above all, public space. The architect performs and supervises the development of multibranch documentation, and then controls the implementation of the project in the investment process, taking full responsibility for it.
This competition is promoting the direction of thinking that "typical designs" used in different spaces and regions can answer the need for proper shaping of urban spaces. This is fundamentally flawed thinking.
In addition, the assumption made in the competition that the competition will result in architectural, building and technical designs, is not only sundered by administrative, legal and technical reality, but also by cultural reality. In order to develop a construction project in a manner consistent with the rules of law and the principles of technical knowledge, it is necessary to determine the specific conditions of the location. These include, among others:
- cultural context - any investment activity is an interference with the functioning spatial fabric of values, important for the preservation of the cultural identity of society,
- technical context - this includes foundation conditions, terrain, climate zone (with conditions related to e.g. wind, snow), etc.
- legal context - i.e., the "social contract" enshrined in the provisions of local law (local zoning plan) or resulting from compliance with the principles of good neighborliness,
- specific context - at the discretion of the relevant institutions, such as the Historic Preservation Service, the Water Authority, the Fire Department, etc.
Highly optimistic, not to use the word nonchalant, is the assumption that the "typical design" of a multi-family residential building with reduced energy intensity will be subject to adaptation to specific architectural-urban, environmental, geotechnical and formal-legal conditions resulting from the selected location without obstacles. The competition in question reduces the architectural work to the role of a technical specification or a kind of DTR (Technical and Operating Documentation), making the design of the building together with its surroundings (space) to be treated as the same type of "product" as a vacuum cleaner, refrigerator or lawnmower. The very fact that Poland has several different wind and snow zones means that the idea of reduced energy intensity requires an individual approach to each multifamily building. This, in turn, raises the risk that a potential buyer of a "typical design" selected in a competition will consider it - in light of the necessary adaptations to local conditions - to be a non-conforming product to the contract/description, and therefore in violation of the provisions of the Act of July 27, 2002 on special conditions of consumer sales. In addition, the above inconsistency may also lead to accusations against the organizers of the competition for the attestation of untruth in documents (Article 271 of the Penal Code) by the potential Purchaser / purchaser of the typical project, who will not be able to implement the planned investment without implementing a number of significant and costly changes to the purchased documentation.
* PURPOSE OF THE COMPETITION:
The purpose of the Competition is to obtain a maximum of five (5) best architectural and functional-utility concepts of a typical multi-family residential building with reduced energy consumption.
How to use the results of the Competition
It is assumed that each Architectural-Building Design and Technical Design presented in the project resource mentioned above will be subject to adaptation to specific architectural-urban, environmental, geotechnical and formal-legal conditions resulting from the selected location. The catalog will always specify the composition of the author's team and/or the company developing the Architectural and Building Design and Technical Design. The project from the resource will be the basis for the future Investor to make a full design documentation and other studies that will allow obtaining a building permit, preparing and conducting a public procurement procedure for construction works, execution of construction works, as well as delivery of basic equipment.
The Organizer does not guarantee that the contract for the execution of the project documentation will be awarded to the author(s)/developer(s) who developed the project included in the project resource.
important provisions of the contract (ipu), which will be introduced into the public procurement contract
The copyright regulations contained in the material provisions of the contract call into question the protection of the intellectual value of the authors, as well as the compatibility of the potential realization of the public space with the initial concept and subsequent design documentation. They also contradict the idea of a profession of public trust, which the Chamber of Architects of the Republic of Poland upholds.
* CHAPTER II COPYRIGHT
Upon payment by the Ordering Party of the amount due for Part II of the subject matter of the agreement, the Contractor shall transfer to the Ordering Party, without the necessity of making separate declarations of intent in this regard, the author's economic rights to the individual Works to the extent of disposal and use of the Works in the fields of exploitation specified in sec. 5 together with the right to exercise and permit the exercise of derivative copyrights in the Works. As of the moment of acquiring author's economic rights to the Works, the Ordering Party acquires, without the need for the Contractor to make separate declarations of will in this respect, ownership of copies of the Works and the carriers on which the Works have been recorded. Transfer of author's economic rights to the Works, i.e. to the entire project documentation, as well as to its individual elements, includes the following fields of exploitation:
1) Multiple use for any purpose related to the implementation of the Housing Project, including the implementation of the Housing Project based on the Documentation, and the subsequent operation of the Housing Project;
9) to use the Works amended in accordance with Section 8 for construction, expansion, reconstruction, reconstruction, renovation, demolition, and any other changes to all or part of the Development and any other construction to which the Works or the amended Works will relate;
10) to subcontract the exercise of derivative copyrights to others, including making the Documentation available to third parties for the purpose of their supervision over the performance of the work carried out on its basis;
The Contractor permits the Ordering Party to exercise and permit the exercise of derivative copyrights in the Works - to the extent that this includes any development of the Works (changes, alterations, adaptations or additions to the Documentation) after completion and payment of the remuneration for Part II, and disposal and use of the developments in the fields of exploitation specified in paragraph 5.
The regulations on penalties provide for their amount, which threatens the security of contract execution. In addition, the regulations deny the principle of balancing the responsibilities and obligations of the parties to the contract.
*CHAPTER III CONTRACTUAL PENALTIES
1.For each day of delay in handing over a given part of the subject matter of the contract, the contractor shall pay to the Ordering Party a contractual penalty in the amount of 0.5% of the gross remuneration specified in Chapter I, paragraph 3 for the given part.
(2) In the event of improper performance of a given part of the subject matter of the agreement, the Contractor shall pay to the Ordering Party a contractual penalty in the amount of 10% of the gross remuneration referred to in Chapter I, paragraph 3 for the given part.
(3) In the event of non-performance of a given part of the subject of the agreement, the Contractor shall not receive remuneration for a given part and shall pay to the Principal a contractual penalty equal to 5% of the gross remuneration referred to in Chapter I, paragraph 3 for the given part.
(4) In the event of withdrawal from the contract in whole or in part for reasons not attributable to the Ordering Party, the Contractor shall pay to the Ordering Party a contractual penalty equal to 10% of the gross remuneration referred to in Chapter I, paragraph 2. Along with the calculation of the contractual penalty on this account, the Ordering Party's claims to contractual penalties on other grounds shall cease.
(5) In the event that the execution of the subject of the contract - without the consent of the Ordering Party - is entrusted to another entity, the Ordering Party shall have the right to withdraw from the contract within 7 days of becoming aware of such entrustment and charge a contractual penalty under paragraph 4.
(6) In the event of breach of confidentiality provisions by the Contractor, the Contractor shall pay to the Ordering Party a contractual penalty in the amount of 2% of the total gross remuneration referred to in Chapter I, paragraph 2 for each case of breach.
(7) The Ordering Party may claim on general terms damages in excess of the contractual penalties reserved in its favor.
(8) The parties agree that in the event that the Ordering Party charges contractual penalties, the Ordering Party shall deduct from the remuneration an amount equivalent to these penalties, and so reduced remuneration shall be paid to the Contractor.
(9) The limit of contractual penalties that may be charged by the Ordering Party is 30% of the gross remuneration referred to in Chapter I, paragraph 2.
other provisions of the future agreement
Design work is a creative process, which by its very nature produces value that was not there before. The use of Performance Security is inadequate for services of a similar nature.
In a competition procedure in which the work is selected by a specialized Jury, the use of a performance bond is unnecessary and harmful. This is because the subject of the contract is a design development, for which the unique value of the Contractor's intellectual and emotional involvement in the design and creative process is sufficient collateral.
*CHAPTER IV OTHER PROVISIONS OF THE FUTURE AGREEMENT
(...) 2. performance bond The Employer provides for the payment of a performance bond in the amount of 3% of the gross contractual remuneration.
In addition to the aforementioned doubts, the creators of the appeal suggest consulting the regulation of the material provisions of the contract (IPU) with the insurance company with which those wishing to participate in the competition have a liability policy. There is a high probability that the scope of the regulation goes beyond the scope of liability coverage. In such a situation, they suggest analyzing the economic and professional security for this activity.
The purpose of the activities of the Council of the Malopolska OIA of the Republic of Poland is not to demonstrate non-compliance of the proceedings with the Public Procurement Law. The Council takes action in connection with the public interest of optimizing the spending of public funds and
in an effort to achieve the right conditions for the implementation of the tasks that have been set before the architectural profession.
The basis is the provisions of the Law of December 15, 2000 on professional self-government of architects and civil engineers (Journal of Laws of 2014, item 1946, as amended).
Based on Article 8. the tasks of professional self-governments include, in particular:
1) to supervise the proper and conscientious practice of the profession by members of the chambers,
2) to represent and protect the professional interests of its members,
6) cooperating with government administration bodies and local government bodies, as well as with other professional self-governments and professional associations.
In addition, § 6 of the Statute, of the Chamber of Architects of the Republic of Poland defines the objectives of the Chamber of Architects:
The Chamber's primary objective is to protect space and architecture as a public good. The Chamber pursues this goal by ensuring the proper performance of independent technical functions in the construction industry and by overseeing the performance of construction expertise in the field of architecture.
The analysis is based on the Certification of Competition Proceedings prepared by the Team of Conditions of Practice of the Profession at the Council of the MPOIA of the Republic of Poland (Krakow March 2017, revised November 2022).