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Tapping Building Information Modeling’s Potential While Avoiding the Legal Minefield

Claims ResouRse: CommentaRy

by J.R. Steele – Akerman Senterfitt LLP

IntroductionBy now most construction industry participants have either heard, or been involved with, a project that has utilized Building Information Modeling (BIM) during the design and/or construction phase. The construction industry has always been fascinated by techniques and technologies that promise project participants increased productivity coupled with decreased costs and project delivery time. BIM has been recognized in the industry for having the potential to actually accomplish these lofty goals. With new technology, however, comes new legal risks. As BIM becomes increasingly mainstream, construction participants would be well advised to acquaint themselves with the risks associated with the use of BIM so that they can utilize the vast potential of BIM while avoiding the legal minefield.

What is BIM?BIM at its most basic form is an electronic or virtual simulation of a project based on information and data that captures a project’s relevant aspects. BIM models utilize parametric software tools like ArchiCAD®, Revit®, Digital Project® and Tekla®. Therefore, BIM essentially incorporates basic construction information, including drawings, specifications, and construction details to form a three-dimensional manifestation of a project. A number of BIM models even have the ability to tie in construction scheduling and costing data. Moreover, BIM models are being utilized by some owners to model and evaluate energy efficiency as well as monitor the life cycle of their structure.

The most dynamic aspect of the BIM process is the model’s ability to evaluate a variety of data sources and elements of a structure to create relationships; thus facilitating realistic responses to design change. For example, BIM models have the ability to recognize and alert the user to potential impacts on the MEP

components of the project caused by a modification to structural elements—often times called a “clash detection.” Therefore, because all aspects of the project are incorporated into a single database, or set of related databases, common issues with coordination of drawings and conflicts are greatly reduced prior to any field installation. Further, the virtual model can be used to bypass certain laborious and usually inefficient processes on a project—such as the use of shop drawings. Consequently, the use of BIM on a project has the potential to dramatically reduce design errors/omissions, construction waste, and schedule impacts caused by change order and request for information (RFI) delays.

Legal Risks Associated With BIMBIM appears to have unlimited potential for helping construction participants increase efficiency while decreasing costs, and is likely to be the project delivery mechanism of choice in the not-so-distant future. In fact, major owner groups such as the General Services Administration (GSA) and the United States Corps of Engineers (USACE) are mandating its use on certain projects. Because of BIM’s substantial potential, we are likely to see an increase of its use on all types of projects. As a result, construction participants should be aware of the following basic legal risks associated with participating in the BIM process:

Who bears the risk for the design?A fundamental issue that has many construction participants worried is who ultimately bears the risk for the design of the project when the BIM model entails a collaborative effort from a number of sources—including the owner, designer, general contractor, subcontractors, suppliers, and consultants. This would seem like a thorny question with a difficult answer. However, it

seems appropriate that the traditional approach to a construction project should be maintained and the architect or engineer of record is best suited to be the responsible party for the design. Clearly, however, the risks associated with this charge and the management

of who has access, and how the BIM model can be changed/modified, are important coordination questions that should be addressed by the designer of record in its contracts with the owner as well as its subcontractors and consultants. Additionally, from a project management standpoint, the designer—and possibly other project participants—should also develop a tracking and preserving protocol for the various iterations of the BIM model so that changes to the model can be preserved should later conflict ensue. Therefore, careful risk allocation and coordination of the contract documents is key in these regards and should mitigate any potential liability associated with an unintended assumption of design responsibility.

BIM appears to have unlimited potential for helping construction participants increase efficiency while decreasing costs, and is likely to be the project delivery mechanism of choice in the not-so-distant future.

Construction participants should be aware of the legal risks as well as the benefits of participating in the Building Information Modeling process.

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Gio Aliano is the Director of Architectural Dispute Resolution Services for URS in Los Angeles. He has performed architectural services on a variety of signature projects and provides Architectural Standard of Care Review and other consulting services. Mr. Aliano is a Licensed Architect in California and has been involved in the practice of environmental design, planning and architecture for over 20 years. He has an MA in Architecture from UCLA Graduate School of Architecture and Urban Planning, and a Bachelor of Science in Design from Arizona State University, College of Architecture and Environmental Design.

In addition to architectural planning and design, Mr. Aliano has been an active design critic while serving on the Glendale Design Review Board for the past seven years. He has been involved in the critiques and discussions of the Glendale Town Center (Americana on Brand) and other projects of importance to the community. He has also been a guest critic to evaluate student work in several local Universities, including UCLA Graduate School of Architecture and Urban Planning.

Mr. Aliano has designed community-based projects such as public and university libraries, schools, churches, and multifamily/single family housing. He has also served as the Senior Designer for the NORCO Student Services Center, and the Cabazon Civic Center, under the employ of Harley Ellis Devereaux.

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Tapping BIM’s Potential

ExPErT ProfILE: Gio Aliano

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This information in the Claims Resourse is for general information and should not be relied upon as legal advice. The information cannot be applied to specific facts and circumstances without advice from legal counsel. This article is written by a guest author as a forum to address key issues related to the construction industry.

Signature project involvement includes:• NORCO Student Services Center,

Riverside• San Marino Public Library,

San Marino• Meadows School & Arts Center,

Las Vegas• Irwindale Public Library, Irwindale• Jefferson Branch Library,

Los Angeles • Mid Valley Regional Library,

Los Angeles• Mesquite Public Library, Henderson • Lennox Library, Los Angeles• Challengers Boys and Girls Club,

Los Angeles• Loyola Marymount University

Library, Los Angeles• Holy Trinity Parish School

Expansion & Renovation, San Pedro

• Holy Redeemer Parish Kindergarten, Montrose

• LAX Tom Bradley International Airport Terminal, Interior Renovation, Los Angeles

• Phoenix Sky Harbor Airport Terminal 3, Phoenix

• Los Angeles Zoo, Rain Forest of the Americas and Reptile Interactive Center, Los Angeles.

To what extent can project participants rely on the model’s accuracy?There are a dizzying number of possibilities for how BIM modeling can be used on a construction project. On the extremes, a BIM model can be a simple tool used solely for marketing purposes to provide a 3D rendering of the future structure or the BIM model can be a highly sophisticated tool examining thousands of variables to develop a 3D model from which the contractor will actually build the structure. Obviously, a marketing rendering and a ready-to-construct 3D model are quite different. However, between the extremes there is a lot of grey. It is, therefore, important that the parties define how the BIM model is going to be used on the project and to what extent it can be relied upon by the project participants for accuracy. Additionally, the designer of record should address these notions of accuracy and reliance in its subcontractor and consultant agreements, as downstream entities may be adding significant information—and maybe even their own BIM model—to the mix. Defining the level of reliance on model accuracy upfront prevents confusion amongst the parties and sets roles and responsibilities that help prevent later disputes.

The information provided by subcontractors, suppliers, and vendors into the BIM model can raise unique issues in and amongst itself. This is especially true in instances where a vendor is providing key information to the BIM model regarding specialty equipment dimensioning and sizing. In order to maintain the pace of construction, it is common that the structure that surrounds the specialty equipment is built based on the BIM model dimensions well in advance of the actual piece of equipment being installed on-site. Accordingly, a BIM model discrepancy caused by faulty information from a vendor may have a dramatic effect on the already built

3This information in the Claims Resourse is for general information and should not be relied upon as legal advice. The information cannot be applied to specific facts and circumstances without advice from legal counsel. These articles are written by guest authors as a forum to address key issues related to the construction industry.

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Tapping BIM’s Potential

structure, necessitating costly rework and construction schedule delays.

The above scenario highlights the goal of contract provisions that address reliance on information in the BIM model that is provided by others. Such a contract provision must balance the risk of relying on faulty information with the goal of having participants utilize the BIM model to its full potential. Provisions such as a waiver of consequential damages by parties for use of information provided by others into the model may be suitable in some instances to accomplish this goal. However, a waiver should not be entered into lightly and project participants would be wise to evaluate the risks to determine the appropriateness of any such waiver and whether or not some other sort of damage provision—such as liquidated damages—may be desirable. Examining contract provisions that try to strike the balance between inclusion in the BIM process and protection from reliance on faulty information can be tricky, but addressing those issues and examining the potential damages that may flow from reliance on defective information up front in the contract documents will help avoid later disputes.

Are you using BIM Version 2.0 or Version 2.2?An interesting issue raised by utilizing BIM on a project is whether or not the software and computer systems the parties are using are compatible. Although this appears to be a technical issue better left to computer personnel, it is advantageous to clearly define in the contract documents the types of programs, BIM software, and even the computer systems the parties are going to use during the BIM modeling and construction process. In addition, as a practical matter, parties may want to develop an internal protocol for maintaining consistency with the computers and BIM software used for the project since many projects—including large scale infrastructure and power projects—can last several years, during which a company may undergo

computer and software upgrades as well as updates to the BIM software. In some circumstances, it may even make sense to develop a periodic notice protocol to project participants to verify that everyone is still on the same page in regards to compatibility. Addressing these sorts of technical issues during contract negotiations and formation avoids the potential for confusion, mistakes, and costs associated with incompatibility issues.

Who owns and can use the data in BIM?Ownership of the BIM data or model is another crucial question that must be addressed by the parties. Generally, in a traditional project the designer owns the design, but grants the owner a license to construct the project. Therefore, there is very limited use of the design documents after construction by the owner. In the BIM world, owners are interested in how their buildings function over time and the life-cycle assessment component of the BIM model is a very valuable tool. It is important that the contracts address the extent of the designer and owner’s rights in the BIM model after completion of the project. And more importantly to the designer— the manner in which he/she will be compensated by the owner for that use.

Another concern with BIM is the ease by which parties can be exposed to proprietary information provided by other project participants. Design collaboration and data input from a number of parties is a fundamental practice of BIM modeling. As a result, the use of BIM on a project raises issues of trademark and copyright infringement that may not normally arise in a traditional construction project. Contract provisions dealing with indemnity or hold harmless provisions for trademark and copyright infringement must be included not only

for the owner/designer agreements, but should also be included in contracts between the designer and down-stream entities who are providing information to the BIM model. This may also be applicable to contractor and subcontractor agreements as well.

ConclusionThough not an exhaustive list, the above legal risks should help parties begin to identify and address the unique legal risks associated with the use of BIM. Industry participants should also note that there are very few standard form contracts on the market that adequately address BIM legal risks. Just recently, ConsensusDOCS 301 BIM Addendum was released (“BIM Addendum”) which has been described as a “consensus of current best practices in the use of BIM techniques and technology.” The BIM Addendum is a good start, but this is an “addendum” for use with other traditional standard form contracts so it is ill-advised to use this document as a stand alone contract. Moreover, when using any addendum or rider-type document,

including the BIM Addendum, parties should carefully review underlying agreements to address inconsistencies between the base contract documents and the addendum. Finally, project participants should be cognizant that there is currently no case law addressing BIM legal risks, nor is there any case law that tests the adequacy of the BIM Addendum. Regardless of these facts, project participants are more likely to avoid conflict when they examine the unique BIM risks for their project and address those risks up front and in an cooperative manner—a concept that is encouraged by a document like the BIM Addendum. ■

...project participants are more likely to avoid conflict when they examine the unique BIM risks for their project and address those risks up front and in a cooperative manner...