Hstorically, the construction industry has been hesitant to embrace new technologies that move projects into the high tech/digitized world. This is so for many reasons, including cost, scale, and lack of existing use examples. The use of building information modeling (BIM) is a prime example of that reluctance. Although the concept has been around for decades, only recently, with the advent of more powerful computers and software, has BIM found its place in the industry.
WHAT IS BIM?
BIM is a collaborative process used by multiple parties including architects, engineers, contractors, and owners to create a 3D digital model of a building, allowing all participants the ability to view, modify, and design a building through its lifecycle from conception to demolition. However, BIM provides more than just 3D renderings; it also includes tools to measure costs, durability, systems performance, and more.
When properly employed, BIM can lead to increased construction efficiencies, money and time savings, more accurate cost predictions, and a longer, more useful life for the building. By allowing input by all stakeholders, the parties can create and manage a more complete design from the start. For example, a contractor can more effectively suggest design conflict resolutions. An owner can convey its expectations for performance, operations, and use, and develop detailed maintenance plans for the building and its equipment. Finally, the design professionals have a platform through which potential conflicts can be discovered and resolved before construction.
POTENTIAL LEGAL RISKS
While BIM has a huge upside in fostering collaboration and increasing efficiencies between the parties, it also presents potential risks that should be considered in advance. Those risks include the allocation of liability for design flaws and uncertainty surrounding ownership of the BIM model. Luckily, those risks can be mitigated through a detailed BIM plan.
Since BIM is a collaborative design process involving many stakeholders, the traditional allocation of liability for design errors is not as straight forward as it would be absent the technology. For example, who is liable for a design error if the issue was caused by mis-information entered in the modeling system? Is it the contractor or is it the architect who relied on the incorrect information? It is important that the parties understand and address issues upfront.
One specific way to tackle the allocation of liability issues is through contract language. The American Institute of Architects has revised its form agreements to address the BIM concerns. Even so, prudent parties will continue to ensure their contracts such that the traditional risk allocation holds true (i.e., the architect has sole responsibility for design, the contractor for construction, and the owner must provide correct information.)
BIM’s collaborative process can also raise intellectual property concerns. For example, an HVAC contractor may provide proprietary information or copy written designs that will ultimately become part of the BIM model. Since the HVAC contractor does not have exclusive control of the model, the HVAC contractor may have concerns that its proprietary information could be disclosed to a competitor after project completion. The parties’ contracts and BIM plan should address and resolve those issues upfront.
Finally, risk allocation and ownership rights issues should also be addressed in a detailed BIM plan. A best practice is to create an initial plan prior to formally entering into a contract. The BIM plan should establish communication protocols, outline party roles, create a workflow plan, define access rights to the BIM data, and outline resources and other materials necessary for the successful implementation of the BIM plan. Development of the initial plan at the pre-contract stage permits all potential parties to understand the collaborative approach utilized on the project.
Despite the potential drawbacks of a BIM plan, its proper and diligent utilization on construction projects will catapult the construction industry forward into the fast-paced digital arena.
About the author:
James Macri is a member of Goldberg Segalla LLP’s Corporate Services and Commercial Litigation, Construction, and OSHA and Worksite Safety groups. He handles a wide variety of matters for contractors, architects, owners, commercial developers, and other clients in the construction industry, including complex construction defect claims and contract disputes, among others.
Modern Contractor Solutions, December 2018
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