Translating those words into graphics, the design professional then begins to develop a plan for a constructed environment—whether vertical (architecture) or horizontal (infrastructure). That process requires the design professional and the client to confer—likely multiple times—to ensure that the design matches or exceeds the concept that originated in the client’s mind.
The process of converting possibility into reality is complex, nuanced, messy, and … beautiful. And it can be complicated, not only because of the architecture or engineering required, and the intricacy of designs involved, but also because not all persons can envision a 3D environment from a plan on a piece of paper or computer screen. The necessary communication from design professional to client to first hear and then confirm design intent can become strained due to simple human limitations in envisioning what the plan will look like when completed. That natural complexity is only amplified when designing for accuracy among the various trades that may be contributing to the project, or when renovating or remodeling an existing and/or historic structure.
Enter building information modeling or building information management (BIM), which is a method of gathering and delivering project and design data digitally, as opposed to a static 2D image on paper or PDF. BIM collects and processes millions of data points in order to aid a project—including but not limited to documenting existing site conditions, designing the project, planning for how the project will respond to environmental conditions, coordinating and phasing construction elements, and operating and maintaining the asset once completed.
The broader category of “digital data” is immense and constantly growing and developing. Technological companies regularly deliver to the market tech tools to track construction progress, worker presence and safety, quantities of materials on site, and other metrics. These tech tools all gather digital data. To highlight the diversity and importance of how digital data is gathered, used, and delivered, the National Institute of Building Sciences (NIBS) has renamed what was formerly known as the Building Information Management Council to the Digital Technology Council. Thus, the question of how to manage those data points, how to store them, and how to use them for the benefit of the project overall is the million dollar question … and not the focus of this article. Our focus here is solely the modeling and management of building information.
BIM is diverse and can refer to varying degrees of a model or how it is used, depending on the choices of the project stakeholders. BIM assists stakeholders in communicating critical data about their projects. It has its own vernacular and comes with its own related documents. BIM requires fluency and comprehension by the stakeholders involved in its use. Although BIM has been developing for approximately 40 years, it has gone from an obscurity to a mainline competitive tool for design professionals and contractors alike, as well as an operations and maintenance tool for sophisticated owners.
The traditional legal relationships in design and construction, whether design-bid-build or design-build, generally have designers design what the owner has requested, contractors build the design into reality, and owners fund the project. Those relationships have clearly defined boundaries of duties and related liability, which correlate to the well-defined scopes of work. Contrasted against that backdrop of a relatively linear process and related industry expectations, BIM may invite collaboration and participation from various stakeholders in the early development of the project’s design/concept. That collaboration demands fluency in a new and/or expanded vocabulary, increased levels of communication, information gathering on a granular level, and comfort with red lines of responsibility—and liability—among the stakeholders. Rather than resisting BIM for those reasons, project participants can instead manage those risks and related legal issues and thereby reap the benefits BIM has to offer now and only increasingly in the future.
Returning to the point that design is a method of communication and translation—so is the practice of construction law. The more fluent a construction lawyer is with their client’s business and practice, the better they can understand their client’s priorities, obligations, and risks, and the better advice they can provide the client. No longer can construction lawyers be glib about BIM, as it presents unique and complex issues that have high-stakes legal consequences. Like project stakeholders, construction lawyers who advise those stakeholders and draft their contracts must be fluent in the language of BIM and understand the points of conversation and decision-making in order to best advise clients in managing their risk and meeting their contractual obligations. Construction lawyers thus need to take a deep dive into BIM, expand their fluency to include BIM vocabulary, understand the available contracting resources, and understand the risks and how to manage them. This article will explore the expanding BIM playing field and identify the related risks and legal issues to assist counsel in guiding clients through the process of incorporating BIM into their projects.
My BIM Is Not Your BIM
Without care, the stakeholders in design and construction can talk past one another or misunderstand one another when addressing the topic of BIM because the term “BIM” can mean significantly different things to different stakeholders. There is a need for both fluency on terms and thorough communication between the stakeholders to ensure clarity in understanding.
Building information modeling or building information management is one method of digital delivery—a diverse and complex system that is now integral to design and construction. A common misconception is that a building information model (Model) is one finite item. In fact, “the Model” may include many components and/or vary depending on the level of development (LOD) required and whether the design professional, the contractor, the special materials supplier, and/or the owner will use it. The Model and its use also may vary depending on the type of project, the level of collaboration desired among the design and construction team, and the owner’s requirements for BIM. Thus, it is necessary for project stakeholders and their legal counsel to understand the BIM process (and its benefits, costs, and risks) in order to ensure that conversations occur so the stakeholders are on the same page.
Models are defined by their intended purpose. The different purposes that Models meet are called BIM Uses. The following categories of BIM Uses are predefined for industry application:
- Gather
- Generate
- Analyze
- Communicate
- Realize
- Manage
Every use of the Model will fall into one of these predefined categories. The use may be general, such as the overall design of the project, or for a specific purpose, such as clash detection among building elements, meeting environmental design goals, and/or meeting the owner’s green initiatives.
Contractors—and particularly specialty subcontractors such as ironwork and mechanical contractors—may use the Model to integrate and coordinate their building systems into the overall project. It is common for the Model that the design team shares to contain a disclaimer that the Model is “for reference only” and cannot be relied upon by others. As a result, contractors must make their own proprietary Model for their scope of work. The contractor’s Model may or may not contribute to the Model that may ultimately be provided to the owner.
Owners can benefit from the Model in at least two ways. Overall, owners benefit from the Model in the quality of the completed project. In addition, the owner may benefit if they choose to obtain a copy of the Model itself for purposes of operations and maintenance of the physical asset. Enabling BIM for a project can result in improved processes during the development of the design as well as efficiencies in the construction of the built asset. As part of their requirements, owners may indicate their intent to use the Model in support of operations and maintenance of the facility going forward. Such an as-built Model would need to be contracted for and created at significant additional expense beyond a Model that is delivered for design and construction alone. Further, owners often do not fully understand what “the Model” is, and do not understand what is required to work with and maintain this form of deliverable. Without further education about the process involved in creating the Model and utilizing the Model, unfortunately, some owners still expect project “design” in BIM to arrive like a set of blueprints—a tangible object they can store in their files in the event they need it at a later date. The Model is not that type of deliverable.
A fair question for construction law counsel to ask and evaluate is: Does the owner have the technology and BIM-knowledgeable employees to utilize “the Model” if they received it? And even if the owner did get a copy of the Model from the design professional, that Model may not contain all the information needed by the owner. This one aspect of BIM highlights the critical role of communication as early as project outset between the design team and the owner, to explore if and how the parties would utilize BIM on a project, and whether the project owner would (a) want, (b) have the budget to create, and/or (c) have the staff to utilize an as-built version of the Model in operations and maintenance of the facility going forward.
Models are made in design, made in construction, and potentially made for use in operations and maintenance—all at varying LOD for different uses throughout the project life cycle, which results in varied perspectives and understanding. The direction of this BIM-enabled digital delivery affords the owner significant benefits, but its complexity highlights the need for an owner (or owner’s agent) who understands the BIM requirements and coordinates the BIM process to alleviate the confusion that can arise. Clear communication and transmission of these project requirements is imperative so that all stakeholders are informed and empowered to provide the best possible project delivery.
Construction Lawyers’ Guide to Supporting Clients Through BIM
Contracting Concerns
As the previous section demonstrates, project stakeholders and the construction lawyers who represent them have many factors to consider in order to improve clarity of understanding and to properly contract for a BIM-based deliverable. Across the industry, multiple entities have developed BIM requirements. The National Institute of Building Sciences (NIBS) created the National BIM Standard-US Version 4 (NBIMS-US v4), which contains a module that analyzed and compared these existing requirements and put forth a comprehensive set of Project BIM Requirements (PBR). The PBR is a critical resource when helping clients develop their unique set of BIM requirements based on their needs and desired outcomes.
BIM Is a Communication-Critical Endeavor
By its very nature, BIM involves thousands, if not millions, of details about a project. Thus, the contract—and the success of the project—depends on a meeting of the minds among stakeholders on the level of development and the use of the Model and the data it contains. Construction lawyers are key communicators in this process (even if the only persons with whom they are communicating are their own clients). Construction lawyers whose clients are working with BIM must become fluent in the language of BIM so as to be able to fully discuss BIM and its implications and assess whether their clients are fluent themselves or operating in ignorance or naivety. This point is critical, lest you have the blind leading the blind into a significantly complex process.
Effective communication requires listening to understand and fluency of language on both sides of the table. It is common for the key communicators or negotiators of the interested parties/stakeholders to be new to the idea of BIM or to have their own underdeveloped understanding of the costs and benefits that BIM entails for their respective party.
This drives the need for construction lawyers, when managing the risks for their own clients, to test the depth of knowledge of the key communicators for the other stakeholders in negotiations. For instance:
- Are they fluent in BIM terminology?
- If not fluent, are the parties at least speaking the same language related to BIM?
- Have the various tiers of design professionals and contractors discussed (i) if they each will work on their own Model internally or (ii) if and how they will be sharing/collaborating in preparing the Model?
- Have the parties discussed what the deliverable is, whether that deliverable is different at different stages of the project, and if so, what kind of Model is it and what does it contain?
- Does the owner understand that the Model used by the design team during design and construction is distinct from an as-built Model or set of plans?
- Does the owner understand the cost implications of developing a Model that contains all the constructed details?
Construction lawyers and design professionals have the unique opportunity to serve as translators with their clients, if necessary, to foster understanding and clear communication on BIM and the process involved in utilizing this process for design and construction. Lawyers can demystify the process to help their clients evaluate the benefits and risks of BIM and how it can be used, understand the differing roles of the parties utilizing BIM, and ensure clients are clear on the differing BIM uses. These conversations are not likely to be short or perfunctory, as they will likely address issues in new ways and have the potential to bring about foundational shifts in understanding of the possibilities for their respective roles and responsibilities regarding BIM.
To do so, construction lawyers must themselves be fluent and learned on issues unique to the process of negotiating a project that will be incorporating BIM. To begin that process, an excellent and comprehensive resource is the set of BIM standards, NBIMS-US v.4, created by NIBS for the use and development of BIM in the United States. These standards include specifications for BIM Models, BIM execution plans, and definitions of key BIM terminology, including:
- BIM Execution Plan: This plan calls forth the many questions/conversations that parties need to have about the owner’s goals for BIM on a project and how the project team will carry out the information management aspects of a project.
- BIM Use: A set list of uses intended to provide consistent terminology when applying BIM to a project.
- Model Progression Specifications: Identifies the minimum level of information accuracy and detail of model elements for each milestone deliverable.
In addition, NBIMA-US provides guidance for Construction to Operations Building Information Exchange (COBie), which “provides a standardized method for project teams to deliver the data necessary to maintain a facility in a digital format.” The careful and intentional specification of COBie “allows the facility owner the ability to populate their facility maintenance system quickly and accurately with the data needed.”
Communications between counsel and client should revolve around the legal implications of committing to BIM from the client’s perspective, whether the client is a designer, builder, or owner. How will the incorporation of BIM on a project impact the client’s rights, risks, and responsibilities? Some topics for detailed discussion with clients include:
- How will BIM be used during construction of the project or afterward?
- Does the owner have the budget for the cost of a Model for operation and maintenance?
- What design and construction team will be needed to successfully develop the BIM?
- What are the goals for collaboration between the stakeholders?
- Will there be one Model, or a “federated” Model consisting of linked but distinct design components from multiple data sources that do not lose their unique identity when combined?
- If the design and construction teams anticipate multiple contributors to the design, who will be in “responsible charge” of the design from a licensing/ethics perspective?
- Is the technology of each contributor interoperable? (Will the technology work together/harmonize once the Models are uploaded?)
- What level of development will be needed for the Model?
- What type of contract documents will the stakeholders use to document these decisions?
- Have those contract documents been modified to accommodate the project being constructed?
- Will the Model or some portion of it be a contract document?
- Who will host/control the Model?
- If one member of the design team is hosting the Model, how will they be coordinating all components of the Model?
- How will the designing parties handle risk transfer among them?
- Can the owner meet the technological requirements (i.e., a computer large enough) to house and run the Model?
- Does the owner have staff with knowledge of BIM to work with the Model for its intended uses on the project—whether for reference, design review, or operations and maintenance of the asset once construction is complete?
For owners who have the resources to store and operate the Model, early consideration is critical to specify how the owner intends to use the Model so arrangements can be made accordingly. BIM has the potential to provide a platform for facilities managers to “retrieve, analyze, and process building information in a digitalized 3D environment.” BIM can link and integrate data from the Model to building systems. For those reasons, the use of BIM in facilities management can provide the following benefits:
- Improved collaboration. BIM enables facilities managers to be able to exchange information with key team members from the design and construction phases of the project, which may improve performance of the completed project.
- Smarter and efficient maintenance. The Model can contain information about asset management and preventative maintenance, and, when leveraged as a digital twin, can support active monitoring of building performance. Maintenance teams can access performance and condition data about building assets. As an example, a user can look at a 3D Model of an air handling unit and get information about performance, maintenance schedules, and manufacturer information. The Model also may be able to show technicians specific locations of problems, to expedite repairs.
- Effective space planning. BIM makes it easier for facility managers to visualize how the project and available space will look upon completion, which enables them to optimize space planning, security, and evacuation routes. BIM makes it possible for facility managers to visualize the project at earlier phases, without having to wait for walk-throughs in the constructed space.
- Reduce energy use. However an owner may describe their energy-related priorities (e.g., sustainability, green, LEED, carbon-neutral), BIM can provide owners and their design teams a means to evaluate options that will help them to achieve those goals.
- Optimize the existing facility for better efficiency. For existing projects, a Model can be created using laser-scanning equipment, then adding the original and new plans for the project. Facilities managers can then use that Model to consider retrofitting opportunities to improve energy efficiency and savings.
In sum, construction lawyers have the unique opportunity to increase their clients’ understanding about BIM, its nuances, and its language and help facilitate these critical communications that will help position projects for success.
Should the Model Be a “Contract Document”?
The selection of contract documents is a legally significant step for any party in construction and design. Returning to the traditional legal relationships mentioned at the outset of this article, where “designers design” and “contractors construct,” the set of 2D plans for a project binds the parties and is specifically identified as a contract document. Given that any changes to “the contract” must be made in writing and signed by both parties, any changes to that design must occur through written and signed documentation involving the architect, owner, and possibly contractor. Ultimately, contractors are responsible for building that project as planned and are entitled to payment upon successful completion of that process. The design professionals, similarly, are liable for their work, their errors, and their omissions contained in those plans. Punch list and warranty items are based on the plans. Payment is based on the plans. Alleged defects in construction or claims of breach of contract are all tested against the specific set of plans incorporated into the contract. In fact, under the Spearin Doctrine, when a contractor is bound to follow the plans and specifications that the owner provides for a project (via its architect/engineer), and does so, the contractor will be free from liability for the consequences of any design defects. Against that historic backdrop, we now place both the process and the deliverable of BIM.
Contrary to a static 2D paper document that can easily be labeled and held in hand, the BIM Model will reside in a computer or in the cloud, and its details will continually develop and change throughout the design process. The Model is neither a “tangible” nor a “static” item, which complicates the process of identifying which iteration of the Model would be the project’s “plan” for purposes of binding the designer as well as the contractor. The Model contains additional digital data as well as the data and geometry representing the design itself. Additionally, the Model will be changing repeatedly (likely daily) during development, so the requirement for documented and signed changes would be cumbersome if not impossible. Further, the contractor—be it the general or a specialty sub—may contribute elements of the design to the Model. The contractor’s involvement in design blurs the traditional lines of responsibility between design and construction, which can complicate the question of liability.
While these issues are individually and collectively thorny, fear of complications should not conquer the benefits of technological progress and/or collaboration between construction and design that BIM affords. Fortunately, industry partners have taken on the challenge of addressing these questions and providing solutions. The AIA Contract Documents and the AGC ConsensusDocs have developed form documents and a wealth of guidelines and processes to assist project stakeholders in navigating the question of whether—or when—a Model should become a contract document. For instance, AIA Contract Documents specifically have created new terms, including “Model Version” (a BIM Model at a single point in time that parties can identify as a contract document) and “Model Portion” (a subset of a Model). Traditional documentation requirements for changes to contract documents would apply to a “Model Version” that was designated as a contract document whenever it is being updated by the release of a new Model Version. These steps should be undertaken with great care and discussion between construction lawyer and client, as well as all other stakeholders in the process, to ensure the parties and the project are ready to commit to a Model as a contract document.
Well-Tested Contract Form Resources
The logical place for the parties to memorialize their meeting of the minds about the use of BIM on a project is in the contract documents among the stakeholders. AIA Contract Documents and ConsensusDocs have each developed specific form documents to guide stakeholders through the process of discussing and deciding the myriad details for the use of BIM on a project. Both entities provide catalogues of documents and resources available on their websites. Early and proactive use of these documents—at project inception, if possible—best serves the stakeholders.
ConsensusDocs 301 BIM Addendum: This document may be used for projects where all essential participants—including the owner, the lead design professionals, the lead contractors, key subcontractors, subconsultants, and suppliers—will be involved early in the design, procurement, and construction planning process. The 301 BIM Addendum does not require that the Model be a contract document and assumes that the Model will be “federated”—that is, the Model will be a combination of distinct Models from multiple data sources. The 301 BIM Addendum works on projects where the parties will use a Model as well as drawings for distinct elements.
AIA Digital Practice Documents: AIA Contract Documents has created a number of documents to “initiate, at the outset of a project, a substantive discussion about the extent to which Digital Data and BIM will be utilized, and how Digital Data and models can be used and relied upon.” Key documents for purposes of this article include:
- E201-2022 BIM Exhibit: Exhibit E201 helps project stakeholders share Models when a “Model Version” may be enumerated as a contract document. Project stakeholders can specifically identify certain Model Versions as contract documents and limit particular uses for Models to avoid unintended use. This exhibit allows the parties to discuss and define Model use, sharing, and reliance. It identifies the levels of development required for the Model and incorporates by reference the BIM execution plan that the parties will create from Exhibit G203. The E201 would be attached to all of the contracts issued on the project and thereby would help all stakeholders gain a consistent understanding of the applicable Models in the contract and how they can be used.
- E202-2022 BIM Exhibit: Exhibit E202 guides project stakeholders through many of the same considerations as the E201, except these Models are not contract documents.
- G203-2022 BIM Execution Plan: Required on a project-by-project basis, BIM execution plans provide a framework for the stakeholders to evaluate, discuss, and address how they will use BIM for the project or thereafter. Like a schedule, the execution plan creates a contractual obligation for the parties to follow.
Addressing the Risks and Rewards of Collaboration
BIM invites collaboration among design and construction professionals. “The shared BIM model acts as a centralized data repository that enables real-time collaboration, helping stakeholders coordinate and resolve conflicts. This level of connectivity reduces errors, minimizes rework, and improves overall project efficiency.” All stakeholders can access and contribute to the Model, making it easier to resolve conflicts, detect clashes, and improve project efficiency. This collaborative approach promotes better decision-making, reduces errors, and minimizes rework during the construction process.
The extent of that collaboration will be determined among the teams on each project as they navigate the contract documents and address the parameters of their contributions to BIM. Without squelching the momentum and creativity that is native to the BIM process, construction lawyers and their clients can use contract documents to find new ways to manage risk that are as nuanced as the integration of the Models themselves. The blurred lines between design and construction raise issues over liability and accountability, safety, and ownership.
1) Risk Transfer: Distributing Liability and Accountability for BIM Errors
BIM errors can occur from technology/operator errors and/or design errors by the inputting parties. Technology issues, such as interoperability problems between federated Models, technical glitches in the software, or power outages that interrupt data input/updates to the Model, can cause significant issues to schedule and model accuracy. Project stakeholders can address these risks in their contracts, for example, by specifying the technology needed to ensure interoperability and coordination, by wisely selecting software licenses and providers, and by maintaining insurance coverage for disruptions and related business risks.
“Although the party responsible for administering the model is charged with providing and controlling the technical resources needed to enable connectivity, host the files, manage access, and ensure security, the increased use of information through electronic means creates exposures for all participants.” This exposure may include software errors and security breaches. Ample precautions are available to stakeholders to minimize these risks, including system backups, protection from unauthorized access, and creation of protocols for project participants.The PBR helps owners establish BIM project requirements by calling out these important points for consideration and decision-making on the BIM Execution Plan and Security.
The collaboration that BIM encourages from the project stakeholders blurs the traditional lines of liability between construction and design. Those blurred lines can be a positive when focusing on the design process, as the collaboration allows more parties and more ideas at the table early on in the process. But those blurred lines can cause consternation when the risks of the stakeholders no longer fit neatly into traditional boxes of “design” and “construction” and their related insurance policies. This creates potential concerns when adjudicating disputes:
As the use of technology increases and data-rich models replace tangible instruments of service, courts might be confused as to the role of engineering firms. In addition to challenges of security and productivity problems that could be created by any failure in technology when an engineering firm assumes responsibility as the model manager or overall project coordinator, the exposure of the firm to devising construction means and methods, controlling scheduling or other requirements of construction, or even creating the final product for a client may expose the firm to risks that go beyond professional liability.
BIM is challenging construction and design stakeholders to find a new way to contract around these issues. “Model improvement, industry standards, and interoperability are issues for the software developers, NIBS, and the IAI to address. But, it is the responsibility of contracting parties and their lawyers to create contractual language that will foster collaboration and appropriately allocate risk and compensation for a project utilizing BIM technology.”
For instance, contractors’ contributions to design arguably remove their Spearin protections, as they are no longer distinct from the design team. Any party contributing design elements is arguably liable for their own contribution and its negative impact. BIM technology helps with accountability, as it tracks the author, date, and time of any changes made to the Model.
But the architects and engineers of record on any project, as licensed professionals, must be mindful that collaboration presents a significant amount of risk to them. The licensed professionals have an obligation to oversee the project design, which derives from their licensing requirements and applicable codes of ethics, requiring design professionals to protect the health, safety, and welfare of the public. While the verbiage may vary slightly in each jurisdiction, the statutes and ethical rules generally require design professionals in responsible charge to maintain oversight of the design and only sign work within their direct supervision. These professional obligations exist regardless of the number of other contributors to the project through the Model. Therefore, it behooves the design professionals to establish and maintain controls over project design, especially in BIM. Putting it bluntly, if a question of responsibility arises, no one is going to sue the BIM Model. The design professionals of record must maintain the integrity of and control over the design process because they are in responsible charge of the project design overall.
Construction lawyers and their clients can address these issues first by thorough discussion, so all parties are going into a BIM project educated and with eyes wide open. Next, they can address these issues in contracts by being as clear and specific as possible in defining roles and putting reasonable controls on who can contribute to the Model, who can rely on the Model, who can use the Model, and when and how. Both the ConsensusDocs and the AIA Contract Documents outlined above essentially preserve the traditional roles of designer and builder but set forth ways of communicating and decision-making allowing stakeholders to modify the design process through the use of technology and early collaboration of ideas.
2) Ensuring Safe Maintenance of and Access to the Model.
The Model is maintained and shared through a mutually accessible online space called a common data environment (CDE). All stakeholders have access to and can contribute to the Model, which improves efficiency and clash/conflict detection in the design. With this collaborative approach, BIM promotes better decision-making, “reduces errors, [and] minimizes rework” during the construction process. But to ensure safe operations, the stakeholders’ conduct must be governed by contract provisions, protocols, and/or specifications that set forth how stakeholders access the Model securely and safely to add content and minimize risk in that process.
Given that BIM involves the exchange of vast amounts of electronic data among multiple parties, it is vital that the project has a designated administrator or gatekeeper of the Model—typically known as the information or Model manager. The Model manager’s duties should be discussed and specified by the project stakeholders in the contract documents and clearly communicated to the manager. Duties could include “maintaining the site, overseeing or providing access rights, preserving record versions of the models, and managing collaborative sessions.”
“As collaboration increases, so does the role and risk of the information manager,” facing “security breaches that introduce viruses or worms into computer systems or divulge confidential or proprietary information not meant for release.”
The volume of data that each design and construction stakeholder contributes to the Model will grow the size of the Model exponentially throughout the design and construction processes. Safe hosting and maintenance of the Model are critical to maintain the Model’s integrity and its data, to avoid disruption in access and uploading of data, and to avoid the risk of cyber theft/tampering. Management of these business risks requires the stakeholders to be careful in their selection of team members, vendors, software applications, and technology administrators and requires them to closely follow protocols and safety measures related to the systems they are operating in conjunction with BIM. AIA BIM Exhibits E201 and E202 both contain a section that invites the contracting parties to discuss and identify data security measures.
3) Who Owns the Model and/or Claims Design Credit?
“The type of information contained in a BIM Model is potentially more complex and valuable than the information contained in a reproduced set of working drawings.” The issue of who may claim design credit and/or ownership of the Model, its elements, and the data contained in the Model is a main point for discussion that should be addressed in project stakeholders’ contracts.
The written contract between the design professional and the owner traditionally protects the design professional’s ownership rights, including copyrights, to all “instruments of service” (i.e., the plans/designs), pursuant to the Architectural Works Copyright Protection Act. Those rights could logically extend to the BIM Model, as it is one more instrument of the design professional’s service. Similarly, if the owner contracted for a license to a copy of the Model at project completion, the design professional could provide a copy of the Model to the owner under a license for use upon payment in full for all services rendered, but any such license for use should contain clear guidelines for how the Model and the data contained therein may and may not be used, and a waiver releasing the Model creators from any liability arising from modifications to the Model or improper use of the Model and/or the data contained in it.
Both the AIA BIM Exhibit E201 (where the Model will be a contract document) and the AIA BIM Exhibit E202 (where Models will be shared among the project stakeholders but will not be enumerated as a contract document) build off of the intellectual property rights of the main agreement between the parties and state clearly that the creator of the Model does not convey any ownership rights to the Model and its component parts, or the software used to generate the content.
Given that multiple layers of designers and contractors may be contributing to the Model, it is critical that every contributor has rights to the data and/or design that they are supplying to the Model. Both AIA BIM Exhibits E201 and E202 address that concern by requiring all participants to warrant that they have all rights to the data they are contributing. It may be possible for all the BIM contributors to contract for their collective ownership of the Model and/or claim design credit, provided that all owners are clear and accurate about, and do not misrepresent, their respective contributions.
Negligence and Insurance Concerns
BIM’s blurred lines between design and construction create similar insurance challenges. When the process of designing the project looks more like a tapestry than a linear graph, it is difficult to define and insure the extent of one party’s participation as contrasted with another party’s participation. But design, construction, and the law have to be responsive to change. For that reason, insurers and risk managers alike have been engaged in dialogue about the impacts of BIM on liability and insurance and continue to try to discern the best path forward.
These risk management challenges are not new, nor are they limited to BIM. The industries of construction, design, insurance, and law have been grappling with how to manage risk among the project participants since the onset of design-build, integrated project delivery, and delegated design. The parties (and their insurers) entering into these collaborative relationships have come to understand that allocation of risk requires as much clarity and communication as possible about each party’s contribution, and acceptance of the fact that there will likely be shared risk among them in the event issues arise.
The issue boils down to the traditional distinction between creating the design versus specifying the means and methods of construction. Traditionally, design professionals utilize their professional judgment to render their services and prepare plans that set forth the design intent for the project. The contractors deliver the project through their use of specific means and methods of construction. Ne’er the twain shall meet—in fact, the general conditions of some construction contracts plainly state that the design professional has no control over or liability for the means and methods of construction. But BIM could be perceived as more of a project delivery system than simply a design. As such, BIM poses the risk that the volume of data in the Model could be seen as the design team directing the means and methods of construction.
BIM also poses the risk that the contractor who contributes to design could be eroding its protections under the Spearin doctrine. Similarly, the contractor who contributes to planning and programming the work may be seen as providing services analogous to pre-construction professional services like estimating, budgeting, scheduling, and evaluating constructability, which may require professional liability coverage and/or may not be covered by their conventional Commercial General Liability policies. Wise general contractors will consult their insurance carrier(s) before engaging in this work to ensure adequate and appropriate coverage.
These examples demonstrate that “the movement toward a collaborative system enabled by BIM presents challenges to traditional legal concepts and might create exposures not neatly covered by one insurance policy.” Thus, the traditional allocation of responsibility and exposure to liability could be altered when BIM is used as a project development system instead of as a design tool because BIM blurs the distinction between design and construction decisions on means and methods.
BIM also adds an element of technological management that could alter perceptions of the design firms’ roles in the process. “As the use of technology increases and data-rich models replace tangible instruments of service, courts might be confused as to the role of engineering firms. In addition to challenges of security and productivity problems that could be created by any failure of technology when an engineering firm assumes responsibility as the model manager or overall project coordinator, the exposure of the firm risk to devising construction means and methods, controlling scheduling or other requirements of construction, or even creating the final product for a client may expose the firm to risks that go beyond professional liability.” The same risk analysis would apply to an architecture firm performing those roles and functions.
Standard of Care
A frequent—and fair—question is whether the standard of care for design professionals should “change” to accommodate BIM. The collaboration that raises risks of blurred lines of liability, as outlined earlier in this article, also applies when evaluating the standard of care for design professionals.
The standard of care may be set by statute, contract, or common law. As a general rule, construction and design contracts incorporate the common law definition of the design professional’s standard of care: “The ordinary and reasonable care usually exercised by one in that profession, on the same type of project, at the same time and in the same place, under similar circumstances and conditions. Perfect performance is not required by the common law.” This standard of care does not apply to contractors. Their performance is judged against industry standards for their particular trade. But the question of what standard should apply, and to whom, may arise when evaluating the stakeholders on a BIM project due to their collaborated work environment.
This common law standard is built to accommodate changes in the ways that design professionals practice because one professional’s conduct is judged against the applicable standard for conduct of similar practitioners at that time. For that reason, the standard of care need not change to accommodate BIM. Rather, the norm or standard for the design professional’s “ordinary and reasonable care” on the same type of project, at the same time, and in the same place, will naturally evolve to include the use of BIM when it is involved in a project.
This evolution is taking place in market sectors that have been using BIM workflows for a long time. In the building market sector, BIM has been in use for approximately 20 years and its use is not necessarily changing the standard of care as much as it is defining those standards more carefully. This is particularly true for projects that make use of Model progression specifications that define the LOD for Model elements on different deliverables during design. Because LOD defines how much engineering or architectural “thought” is put into a particular element, it is now possible to understand if individual elements of a design meet the standard of care. As an example, one may be able to evaluate quickly that a Model’s steel column design meets the standard of care, but the light fixtures do not. In this way, BIM can add clarity to the question of standard of care. In counseling clients, construction lawyers should pay special attention to the Model progression specifications and the impact they can have, both positive and negative.
As noted above, the use of BIM differs by market sector and region. Depending on the type of project and its location in the country, the legal system imposing the applicable standard of care acknowledges that the use of BIM can be sporadic on projects and not the norm against which all projects or design professionals’ performance can be evaluated. That status may change someday for the project types that have not yet implemented or are just starting to implement mature BIM practices. It would be unfair and inaccurate to suggest that a design professional does not meet the standard of care simply by not using BIM because the choice to use BIM is still driven by stakeholder decisions based on budget and project goals.
Conclusion
The future of construction, design, and facilities management includes BIM. BIM is a model, a tool, and a system—it is a million data points. More than anything, BIM is a dynamic facilitator for communication and collaboration. Construction lawyers and the project stakeholders they represent have a choice “to step forward into growth or step back into safety.” In the competitive construction market, stepping back and staying “safe” may lead to a company’s obsolescence and loss of competitive edge.
Construction lawyers are uniquely suited to help their clients successfully step forward into growth by preparing them to incorporate BIM on their projects safely. The better that construction lawyers understand how their clients conduct their businesses, the better those construction lawyers can proactively spot issues and educate their clients on risk management. And the better construction lawyers understand the practicalities of BIM, its language, its risks and nuances, and its functionality, the better they will be able to listen, communicate, educate, negotiate, and contract for these projects. By taking these steps to heart, construction lawyers can help their clients be ready to step forward and embrace BIM and its benefits, while identifying and managing its risks.