Foster Swift Construction Law News
Not familiar with the term BIM? Building Information Modeling (BIM) refers to software capable of creating "live" virtual three-dimensional, "intelligent" parametric models. The models are not limited to 3D shape; models can link time in 4D and financial data in 5D. The goal of BIM is to simulate the true-to-scale physical and functional characteristics of the structure by capturing all the project participants’ (architect, engineer, contractor, subcontractor) contributions.
BIM models are "live" because the software is capable of identifying conflicts between components within the model. In addition to the graphic elements, BIM uses a database containing the attributes of a structure’s elements. When choosing to add a component to the model, like a wall, for example, the designer selects the wall best suited in not only shape but also possesses the necessary characteristics from a list of pre-programmed walls. This has been analogized to designing with Legos since there are existing Lego pieces that are then selected by the designer to fit the desired purpose.
BIM models are also considered "intelligent" because when a design change is implemented, the software is capable of compensating for the change by adjusting other components within the design.
It is expected that BIM will gain wide acceptance among contractors, engineering firms and architects. As each player in the construction industry realizes that huge savings and larger bottom line profits can result from the use of BIM, utilization should increase rapidly. According to an August McGraw-Hill construction survey, 23% of contractors reported using BIM on at least 60% of their projects during 2008. In 2009, 38% expect to use it at that level.
BIM provides a means of collaboration among the various construction team members. Collaboration through the use of BIM results in (i) reducing the various unknowns between design and constructability; (ii) speed and delivery which reduces the schedule for completion; (iii) greater quality control regarding the interfacing of the design, engineering and construction; and (iv) greater ability to cost estimate from quantities that are more accurate. BIM can also be a means to compare the cost of alternative designs. More accurate data exchange between contractors, architects, engineers and fabricators will result in significant savings for projects. Cost savings are likely to occur from a clear picture to minimize mechanical, electrical and plumbing interferences. This will also reduce the number of requests for information (RFI) and change orders for extras. From estimating to completion, use of BIM can provide cost savings and increased profits.
Although BIM is a great asset for the design and construction industry, there are inherent risks. To minimize these, it is important to consider situations prior to starting the project and develop mutually agreed upon protocol to evaluate the risk and handle any resulting situations.
Every construction project involves cooperation. Who is responsible when project participants must rely in part upon what is contributed to the model by other participants?
A catalyst for many questions arises from the collaboration and/or the contractor’s sole use of BIM whether the design team and contractors are separate in their responsibilities and liabilities? Furthermore can the contractor rely upon implied warranties in designs the contractor is to build?
Case law indicates that it is possible that implied warranties may be limited.i (See Austin Co. v. United States, 314 F.2d 518 (Ct. Cl. 1963)
BIM collaboration facilitates the sharing of information and therefore an individual project participant’s intellectual property is accessible to other parties. This accessibility can result in misuse or re-use of a project participant’s contribution without proper compensation.
The collaboration may also gray the line of ownership as it may be vested in multiple parties. BIM users need to consider what avenues are necessary in contract or otherwise to assure ownership of any contributions to the project.
Confidentiality issues also need to be addressed at the onset of a project, particularly if there are contributions that must remain confidential. Depending upon the number of project participants, it will need to be determined if it is even possible to assert confidentiality or ownership.
There are many software programs capable of creating a BIM model and because it is rare that one BIM model used collaboratively between all project participants problems with interoperability and data transfer are inevitable. In a scenario where project participants use different software and transfer their data to a single system, is it possible to be certain that the data remains accurate?
As with any technology, there is a risk of unanticipated malfunction where the data becomes inaccessible or irretrievable. While it is important to back up the software, it is unknown where liability would be allocated if the software malfunctions. Because a software company holds a limited liability warranty, it is possible that a party who suffers economic loss from the malfunction of BIM software will have no recourse.
Additionally, the "intelligent" system can potentially improperly identify a conflict and/or make inaccurate changes which are then acted upon as the life-cycle of the model and the "real life construction" moves forward.
Furthermore, it is possible that the "intelligent" BIM software, which responds to changes in design by identifying and remedying conflicts and altering the design in response, may make inaccurate changes. In that case, who is at fault? Is the designer of the software at fault? Is it obvious to the user that his or her contribution to the design caused the software to alter model details?
Must a user always confirm whether the system has made any changes and then confirm the changes are accurate? What if the changes extend into the specialty of other project participants? Considering the reliance upon technology the BIM software uses, should problems arise, litigation may be necessary to determine whether the software companies will be shielded from liability.
CONSENSUS DOCS 301 BIM ADDENDUM: A POSSIBLE RISK-REDUCER
The Associated General Contractors of America (AGC) created the consensusDOCS 301 BIM Addendum which can be attached to form agreements between owners and design professionals and owners and contractors to limit the above mentioned risks inherent in BIM. Unfortunately, use of the Addendum is best suited for projects with the following characteristics: (1) All project participants are committed to sharing information and using BIM collaboratively; (2) Traditional project delivery methods (design-bid-build); (3) Construction is to be priced by means of a negotiated guaranteed maximum price (GMP) contract with significant preconstruction services.ii
To limit liability risks, the Addendum preserves contractual relationships as they have existed, allows project participants to specify the level other participants may rely on their contributions to the BIM model, and makes each project participant responsible for any contribution they, or any person under their control, make to the design.
Regarding intellectual property, the Addendum grants a signing party ownership or license to use any copyrights in their contributions, indemnifies other participants against claims of copyright infringement by third parties related to the signers contributions, and grants each party a "limited, nonexclusive license to reproduce, distribute, display, or otherwise use that party’s contribution for the purposes of the project only"iii; once the project is complete, the license is limited to retaining an archival copy of contributions from the project.
To achieve interoperability and limit the risks of data transfer, signers of the Addendum agree which software will be utilized by project participants. If there is a software malfunction, the Addendum imposes the risk on the owner while project participants may be excused from performance or given a time extension. The Addendum also prepares for potential data failure by identifying an individual who must maintain, backup and secure the BIM account.
As individuals in the construction industry choose to use BIM, they must recognize that BIM is not without its challenges and that to preserve a productive working arrangement it is all involved parties interest to address these risks prior to beginning the project.
i Howard W. Ashcroft, Building Information Modeling: A Framework for Collaboration, THE CONSTRUCTION LAWYER, Summer 2008 at 14.
ii Richard H. Lowe, Jason M. Muncey, consensusDOCS 301 BIM Addendum, THE CONSTRUCTION LAWYER, Winter 2009 at 19.
iii Lowe, supra note 2, at 23.