Last month I discussed in general what Building Information Modeling is and isn't. The term properly applies to the accumulation of all data relevant to the design, construction and operation of a physical plant or facility, so that parties can work out discrepancies and conflicts in a virtual environment (rather than in the field, when work is stopped), and then later use it as a "living history" for maintenance, renovation and other purposes. It really sounds great, and with all the technology available to us, how could anyone object?
Well, as always, the lawyer in me says let's think about this first to make sure we've taken into account the downside as well as the upside of BIM. As it turns out, there are a number of potential risk issues in using BIM. It doesn't mean that BIM won't be appropriate to your project — just that need to be discussed and dealt with contractually, so that there are no (or at least fewer) unpleasant surprises later. Legal and risk management issues can be divided into three major categories: intellectual property, such as copyright and licensing of the model, and of individual contributions to the model; liability for content, including corruption, modification, misuse or misinterpretation; and relationship of model to other documents — is the model a contract document? Which controls in the event of conflict?
Intellectual property: The Architectural Works Copyright ProtectionAct defines this as an "original works of authorship" including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural and audiovisual creations." As for the architectural component, it protects the design of a building, plans or drawings, but not standard features. It gives the creator “exclusive" rights to control reproduction, distribution, modification and reuse for the life of the author, plus 70 years (longer for works done for hire). Damages for violation of the law are steep, including injunctions and money.
Ironically, the better BIM works, and the more collaborative the process is, the murkier the issue of ownership of design becomes. To avoid disputes later, this issue really needs to be addressed up front in the contract documents, and not all existing forms of contract do this. Ideally, the agreement ought to protect the rights of the author of the original work, as well as those of the collaborators who contribute enough original material to constitute a protectable work product. In other words, the contract should address who owns what works, who is authorized to use the works and who can access the works.
Liability for content: This includes claims for negligent design or construction, property damage or personal injury, and storage and transfer of data. Pre-BIM, the law was settled that an owner "impliedly warrants" the accuracy and completeness of the design given to the contractors. That was before the contractor became part of the process. What if software differences corrupt the data, or produce inconsistencies? As you already know, as soon as you break the shrink-wrap on a computer program, you have agreed to the manufacturer's terms, which absolve it from virtually all liability for your use of the program. Your contracts need to address the issue of who is responsible for errors or corruption created by transmission of data, and requiring parties in the BIM loop to verify the accuracy and completeness of what they receive, and indemnify others against claims arising out of their errors and omissions. You will need to make sure that you have adequate data back-up protocols, and adequate insurance to cover the liability you are assuming.
Relationship of model to other documents: Most contract documents have traditionally provided (although ConsensusDOCS varies here) that submittals and shop drawings are not construction documents, and any deviations in them from the plans and specs will not relieve the contractor of strict compliance. So, will the model be a "contract document" or not? If the purpose of BIM is to be achieved, this line in the sand has to be blurred, so that the input of the equipment manufacturers and subcontractors is incorporated into the living BIM model, yet the entire purpose of state designer licensing statutes is to clearly impose the responsibility for design on these professionals. If non-licensed persons are permitted to provide input, the designers must ultimately review that input and approve it as the ones in "responsible charge" of design work.
Perhaps the best thing for contractors to do is spend time reading the AIA BIM Exhibit 202-2008, and the ConsensusDOCS 310 BIM Addendum. These new documents are intended to list the issues which need to be addressed, but neither suggests the "right" answer. That will only come from discussions among all the stakeholders — the sooner, the better.
Susan McGreevy is a partner at Stinson, Morrison, Hecker LLP, Kansas City, Mo., 816/842-4800, e-mail to [email protected].
Read more articles by Susan Linden McGreevy