BIM Construction: The Legal Issues

There are plenty of hurdles in realizing the full power and benefits of BIM across the building life cycle. One of the most important, ironically, has nothing to do with the software! Implementing BIM construction entails a huge front end commitment and a smart implementation strategy in order to most quickly and fully realize the cost-savings and value-added possibilities that this revolution in the AEC industry promises. But perhaps the most difficult issue in BIM construction isn’t even part of the AEC industry: it’s the lawyers. If you thought the design and building industry was stodgy when it came to accepting a new paradigm, then the legal world is downright Neanderthal: change-adverse, risk-adverse and suspicious of anything upsetting the well-worn methods and comfortable apple-cart that has defined the legal process of the building industry for almost a century. This manner of doing business stems from the landmark Supreme Court construction law case United States vs. Spear in, (248 U.S. 132) 1918, which is now referred to as the Spear in Doctrine. Traditionally, it holds that a contractor will not be liable to an owner for loss or damage which results solely from insufficiencies or defects in such information, plans and specifications provided by an owner. In other words, there is an implied warranty of design adequacy. Plans and specifications must be defective for the contractor to recover damages. So there is fundamentally a strict firewall between the Owner/Designer and the Builder. In a total BIM construction environment, this firewall is shattered, and so is the legal framework which it underpins.

The fundamental change, from a legal perspective, in BIM construction, is that downstream actors, Contractors and Facilities managers, can become involved in the design process, or rely on the model for business decisions. This is one of the great leaps forward provided by BIM, as constructability issues not normally discovered until the project is onsite, costing thousands or millions of dollars in change orders, can now be rectified in the design process. The model also accrues great value as it proceeds downstream, and becomes a valuable reference. But then, who is responsible for the design? Who carries the risk, as the model morphs through the entire design/build/maintain lifecycle? Who has the responsibility to ensure the quality of contributions to the model, which is really, in a mature BIM construction scenario, a whole series of models? Who bears the cost of model management? How does the change in terminology associated with BIM construction cause legal uncertainty?

With the linear, factory production line quality of CAD-based design and building retreating ever more quickly, the collaborative approach which defines BIM construction, also known as Integrated Project development (IPD), enters a completely new legal realm, where no real precedents exist. This leaves the AEC contract with two paths:

1. Rely on established precedent and case law matched up as much as possible to the BIM construction process

2. Include a BIM protocol into the contract, dealing with the unique issues of BIM construction

In many ways, the power of BIM is intimately intertwined with its paradigmatic legal shift. If a project does not accept a more collaborative spreading of risk, as in #2 above, then it severely diminishes the potential of the BIM construction process. It also, if it decides to rely on existing case law, as in #1, really enters into a vacuum with unpredictable and possibly inconsistent results in litigation. It is, as always, a balancing of risks and rewards. Fortunately, things are not as unformed as they were only 5 years ago. The AIA created its E201-2007 Digital Data Protocol Exhibit and E202 – Building Information Modeling Protocol Exhibit in 2008, convening industry experts to craft templates to “establish the procedures…with respect to the transmission or exchange of digital data” in the first case, and for E202, “assigns authorship of each model element by project phase,… defines the extent to which model users may rely on model content, clarifies model ownership, sets forth BIM standards and file formats, and provides the scope of responsibility for model management from the beginning to the end of the project.”

In the real world, these templates are significantly altered depending upon the collaborators established styles of doing business, usually meaning that a hybrid of path 1 & 2 occurs. Again, the extent to which the legal/contractual framework assigns and spreads risk either allows or negates the full power of BIM construction. If “the extent to which the model users may rely on model content” is narrow, as in traditional design/build schemes, than only a small fraction of the parametric modeling muscle can be brought to bear on the project. One of the powerful features of a BIM construction process is clash detection, which virtually identifies problems with design element from the different disciplines that normally wouldn’t be found until the actual construction had begun: walls running through columns, heating ducts running into floor joists, etc… But clash detection is only possible at this level if models are built to a level of design where “model users may rely on model content” that allows them to be joined and have clash detection run. There’s a risk there, on the designer’s part, specifying that detail, if something goes wrong in the fabrication of elements or site work that relied on those details. On the other hand, a significant savings can be realized using clash detection and tightly coordinated models, eliminating costly change orders, allowing for more tightly coordinated labor and materials scheduling, all of which reduces cost and enhances profitability.

An ancillary issue which arises out of this is the whole, powerful feedback mechanism which BIM construction allows is design fees. If a contractor, brought in on the design process, identifies something which causes a design change, how does that impact the designers fee? Or does it? Is it the architect’s problem, the structural engineer, or the MEP? Defining this beforehand can avert costly squabbles down the road.

Without a clear assigning of “authorship of each model element” and “model management”, the likelihood of collaboration, and the benefits it provides in BIM construction, is constrained. There also has been concern expressed about whether BIM construction alters the existing professional standard of care applied to their work in developing concepts and specifications. This has direct bearing on an important addendum to all this, the impact of defining these new contractual relationships on insurance availability and cost. As Richard H. Lowe put it, optimistically, in his article in Constructor Magazine, January/February 2007: “When all of these issues are analyzed, the perceived legal risks in using 3D modeling melt away and are outweighed by the obvious benefits of clash detection and greater project collaboration. It should only be a matter of time before insurers offer discounts to encourage clients to wear the clash-detection ‘safety belts’ of 3D modeling. Ultimately, the question will morph into whether team leaders actually increase risks by not using 3D modeling, much like not using seat belts.”

Others are not so sanguine. As J. Kent Holland puts it in his article How Building Information Modeling (BIM) Impacts Insurance Availability by Changing the Roles, Responsibilities, and Risks of Project Participants: “While underwriters may agree that there are benefits of early conflict detection and resolution through 3D modeling, they are less likely to see how they can underwrite their single insured, who has a minor participation in the BIM model, and who may pick up full responsibility and liability for claims arising out of mistakes caused by use of or reliance on that model… The collaboration of contractors and subcontractors in the design has the potential to create uninsurable professional liability risks for themselves,… Similarly, the collaboration of the design professionals in the means, methods and procedures of construction has the potential to create uninsured general liability risks for the design professionals.”

As these statements make clear, the evolution of contract language, and eventually case law, specifically tailored to BIM construction tenets, will be very important in the evolution of risk assignment and insurance coverage for these projects. The intertwining of the technical, legal and insurance aspects of BIM construction is clear. Defining relationships as far as model development is concerned is key to fully exploiting the power of this technology. And as much as that can be constrained by legal and insurance issues (surrounding the very same paradigmatic shifts as the technical issues), it can also, in the solution, propel a blossoming of the full potential of BIM construction to cut costsand improve designs, productivity and safety.