4.10 In some competitions, the procurer's bid evaluation team may prefer the design approach of a particular scheme together with the price offered by a competing bid with an inferior design solution. However, when assessing a bid, procurers cannot import the quality of design solution from one bid into a competing bid (which may include more attractive financial proposals) without the specific permission of the originating bidders and designers.
4.11 Procurers must bear in mind that design copyright is covered by UK law and by an EC Directive on Intellectual Property, and the intellectual contribution made by the design team is often a major element in successful projects. This position should be clear to both those inviting bids and to service providers submitting their proposals. In particular:
4.12 Initial Studies: The procurer may have a number of studies prepared to establish the outline brief for a project. Such work should incorporate a clause that provides a licence enabling the procurer to use drawings and documents freely in obtaining subsequent bids. This is normally achieved by incorporating a copyright licence for a specific project. When appointed, consultants acting for the procurer should understand that they are being paid for an initial study but that the work may be used by others in developing a project. It must be made clear, however, if the consultants undertaking the initial studies are to be prevented from working subsequently for bidders in the competition.
4.13 The Selection Process: During the selection process, it is likely that the bidders will include proposals for all aspects of a project, including design. It is essential that, during this process, confidentiality is maintained and that the procurers act with due care in order to not transmit the ideas of one bidder/design team to another during the selection process.
4.14 Development of Bids: The best bids will normally incorporate basic proposals with innovative ideas. However, a preferred bidder may not always incorporate the best of these in any aspect of the bid, but may still overall be judged to be the economically advantageous tender. During the subsequent consultations and developement of proposals, the procurer must take care not to influence the preferred bidder in adopting ideas which may have been established in other bids. Equally, bidders have a responsibility to ensure that they do not trespass on the intellectual property rights of other bidders, through carelessness or any deliberate act. While bidders, for commercial reasons, may not wish to take up a legal case where copyright is infringed, design teams and other consultants must abide by their codes of professional practice, and ensure their bids comply with the law and these statements.