Jorn Utzon submitted his winning concept for the new opera house in Sydney in the mid-1950s. He walked away from the project 11 years later (7 years before its grand opening), famously calling it the “Malice in Blunderland” project. Political changes, differences of opinion over procurement, and the realities of turning a groundbreaking concept into something buildable all took their toll.
Problems in practice
The original architectural competition for the Turner Contemporary museum in Margate in the early 2000s was won by a joint entry from Norway’s Snohetta (whose CV includes the Alexandria Bibliotheca, itself the product of a design competition) and Britain’s Stephen Spence. The building was to be located in the sea, off Margate pier. As the design developed the projected costs escalated and disagreements emerged as to how much steel would be required to make the structure code-compliant, and the effect this would have on the aesthetics of the building. After repeated cost escalations, Kent County Council pulled the plug on that iteration of the project. It sued Snohetta and other parties for what it called the wasted expenditure it had incurred. The high-profile case was eventually settled out of court, and a toned-down design (located on terra firma and designed by David Chipperfield) was eventually built instead.
The latest high-profile example of a design competition ending up in the courts is the Dubai Frame: the US$43.5 million, 150m by 93m structure opened in Dubai earlier this year. The project’s owner, Dubai Municipality, to this day credits Mexican architect Fernando Donis as its architect. Donis won a competition in 2009 by submitting a frame-type design which is certainly not a million miles away from what now adorns Dubai’s skyline. The very public controversy, though, started in 2014, at the time ground was broken on the project.
The UAE press revealed images of what the completed frame would look like. According to an open letter Donis published at the time, (and documents filed before the US District Court for the District of Columbia) his competition entry had been wrongly appropriated, infringing his copyright in the architectural work and technical drawings he had submitted. It was revealed in the court filings that since winning the competition, and receiving the $100,000 prize, Donis had been unable to agree the terms of any engagement with Dubai Municipality. So the nature of the relationship between them was up for debate.
Winning a design competition: what happens next?
A common theme is a lack of clarity on a pretty fundamental question: assuming you win the competition, what happens next? Anticipating this very problem, the UNESCO Regulations for Design Competitions have been around for longer than Toronto City Hall. That building was completed in the 1960s following a controversial design competition in which one of the judges publically dissented from the majority’s backing of the winning entry. He was sceptical it could be delivered within budget – which indeed it was not. The final outturn cost was over twice the budget parameters set for the completion.
The UNESCO Regulations provide a basic framework for design competitions which cover issues such as remuneration, post-competition collaboration, including involvement of the winning architect if the scheme is executed and, of course, the vexed issue of how intellectual property rights in the winning design are to be handled. A statement of intended compliance with those regulations is a necessary precondition for the International Union of Architects (UIA) to endorse any design competition. The absence of such an endorsement may well mean that international architects will not take part, fearing exploitation. So the system, in theory at least, has a robust sense of checks and balances which puts it in a different category to normal tender processes. If you want to be able to exploit the prestige and buzz that comes with running a design competition, the architectural profession has certain requirements before it will endorse the process.
However, as can be seen in the above examples, a lot of water can pass under the bridge between calling for competition entries, finalising the winning design and erecting it. Some might say that Kent County Council’s decision to go down a two-stage design and build route to develop and fix a lump sum price for a complex and unusual design, to be constructed in challenging conditions, contributed to the inflation of the project price.
That was also an issue for the Sydney Opera House. It was one of the issues that so irked Utzon decades ago – although in that case it seems political changes played as much of a part. Donis made a similar complaint in his District of Columbia court filings against Dubai Municipality. He argued that one of the reasons he didn’t want to sign up to the Municipality’s design appointment having won the competition was because his actual practical role in the development and construction phases was going to be reduced to one of peer-reviewer and design adviser – the implication being that this was not what he expected. What his expectations were, or should have been, was put before the courts.
The key seems to be in establishing the actual or reasonable expectations of all involved in the competition. The practical application of intellectual property law for architectural design varies around the world, as does the designer’s leverage to insist on favourable terms. As noted above, Dubai Frame’s website identifies Donis as its designer, but clearly the Municipality considered that it was entitled to change aspects of the design as it developed the project. Donis says that he did not sign any terms of appointment with the Municipality; he states that its terms and conditions required a transfer of ownership of most of the intellectual property rights in the design to which he was not prepared to sign up. Practitioners in the Middle East (and in some Asian jurisdictions) will be quite familiar with this approach, which originates from a sense that an employer is buying most of the rights in the design as much as the bricks and mortar that will give life to it. Elsewhere this is more commonly achieved by the designer granting a licence which is, by nature, likely to be more limited.
So what lessons can we learn?
To begin with, the rules of the competition are vital, especially if no subsequent agreement is entered into. This is important for the competition organisers and the entrants. In many instances the submission of an entry will give rise to contractual rights and obligations between the designer (and even the runners up) and the organiser. The rules should make clear not only how that relationship functions (and for how long) but they are also relevant context if anyone later claims to have been somehow hoodwinked. Entrants would do well to consider whether the organiser will be the ultimate client for the project; if not, how will any transfer work and what will it mean for the procurement process and the entrant’s role? Can the entrant live with the expected approach?
Knowing that the competition has the UIA endorsement gets you some of the way, but a savvy employer will also give itself some wriggle room in respect of some of the finer points. This is especially important as it may not have taken procurement advice or even appointed professional advisers at the point it solicits entries. To an extent how it proceeds to execute the project may be driven by the nature of the winning entry so it might be perfectly reasonable to leave those decisions until later. But what then happens if opinions diverge?
Finally, having some sense of market practice (both in procurement routes and the handling of IP rights) in the jurisdiction where the project will be erected will be very valuable, to avoid surprises later.
This insight first appeared on the Practical Law construction blog on 10 October 2018.