Why BIM, and Appropriate BIM Contracts, are Critical to Project Success
By Carrie Ciliberto & Jordan Howard
The design and construction industry is often considered to be tradition-bound, despite an ever-changing
world. Unfortunately, the traditional way of doing business too often includes an adversarial, zero-sum
approach focused on lowest cost, inappropriate risk transfer, and inefficient practices.
A number of influences are driving evolution of the industry, including schedule compression,
realignment, modularization, globalization, economic integration, and technological advances.
The rise of new technology is at the forefront, and greater collaboration among project participants
is key to realizing its full potential. Building Information Modeling (BIM) is one innovative answer
to solving outdated and inefficient “walled off” modes of operation.
The National Institute of Building Sciences defines BIM as “cutting edge digital technology to
establish a computable representation of all the physical and functional characteristics of a
facility.” BIM gives its users the power to produce and manage multi-dimensional digital models
to create a digital representation of a project that parties can see and easily manipulate.
BIM helps design and construction professionals increase efficiencies, decrease costs, and
In its basic form, BIM is the use of multi-dimensional computer modeling to allow all parties
involved in the process to collaborate and analyze the design, construction, and operation of
the project. However, BIM is often broader than its simple structure, and can be used to facilitate
the entire life cycle of a building: inception, planning, design, construction, operation,
rehabilitation, and all the way to decommissioning and demolition.
By its very nature, BIM is a highly transparent and intelligent process. A significant benefit
is its immediate responsiveness where if one party changes a project aspect, BIM can automatically
update details of any related or impacted aspect without the need for manual manipulation.
For example, if the owner decides to change the height of the first floor ceiling, the new
ceiling parameters are entered, and all related components (e.g. length of supporting beams,
window size, etc.) automatically adjust to conform to the new specifications. Project
participants see those adjustments as they happen in real time. Collaboration like this is
invaluable to all parties invested in the project, and it facilitates a more efficient
design and construction process with fewer surprises, delays, and disasters.
Another benefit BIM offers is a layered visual representation, which means that different parties on the
project can see the design that is relevant to their job. For instance, a subcontractor responsible for
leveling the ground does not necessarily need to see the design of an upper floor balcony. This allows
BIM to not become too cluttered and keeps all parties working efficiently without being bogged down with
unnecessary details and documents. BIM is designed to include access hierarchies so that users without
the appropriate permissions cannot make alterations. For example, the constructor will not be able to
adjust the location of ventilation system if that responsibility belongs solely with the design
professional. BIM allows users to predict the construction process more accurately and efficiently
in the face of scheduling conflicts or unknown factors that can arise in any project.
BIM is used when an owner has determined that a multi-dimensional, digital building model should be used
as the primary means of communicating geometric, quantity, and other metric and representational data
required for the design, procurement, and construction processes of a construction project.
A BIM agreement should be used when the owner, lead design professional, lead construction professional,
and major subcontractors and suppliers are willing to commit to model the project design and construction
media using multi-dimensional, digital design. BIM is often most helpful when incorporated early in the
design, procurement, and construction planning process. For owners planning to incorporate BIM, it is
critical for the parties to understand and sign a BIM agreement. The agreement should, at a minimum,
identify BIM goals, determine the succession and hierarchies of participants, specify delivery
requirements, and identify the protocols project participants will use to support the model.
While BIM is a highly desirable approach to construction, there are not many legal avenues to coordinate
the complex waltz involving many independently working parties collaborating with new technology.
Fortunately in 2008, ConsensusDocs published the first industry-standard contract document that
addresses the practical and legal issues associated with BIM.
The 301 ConsensusDocs BIM Addendum was drafted by a nationwide coalition of leaders throughout
the design and construction industry to incorporate industry best practices and the latest in
BIM concepts. Updated in 2015 to keep pace with the evolving BIM technology and use, the BIM
Addendum has the dual characteristics of being both progressive in composition, while preserving
the traditional division between construction and design roles and responsibilities.
The Coalition decided to publish an addendum, as opposed to a separate standalone contract,
to maximize the types of projects in which BIM can be incorporated while preserving the traditional
contractual nature to which parties are familiar. The traditional roles and responsibilities remain
the same – the design professional is responsible for the traditional roles of design, and the
constructor is responsible for the means and methods of construction. Most importantly, the risk
and liability allocations are fair and balanced.
As with all contracts, one of the most important elements is to ensure that all parties clearly
understand their respective roles and responsibilities. As such, key components of the BIM Addendum
include identifying and prioritizing model goals and objectives, defining key terms, determining
levels of model use and reliability, and naming a BIM Manager who is ultimately responsible for the
overall creation, implementation, revision, and usage of the model.
Risk allocation is always an important contractual issue, and use of BIM heightens its importance.
Since a variety of project participants will be accessing the model, which often is created by a
number of individuals from different companies, a BIM Manager helps control risks by assigning
appropriate access permissions for the parties, ensuring model security, and developing protocols
for updates and back ups. In general, a BIM Manager oversees the health and viability of the model
throughout the project.
A BIM execution plan is another important contractual component in determining the proper allocation
of risk when incorporating BIM. The Execution Plan should include issues such as model uses,
schedules and deliverables; process execution addressing conceptual planning, design, construction,
commissioning and turnover; and facility operation and management, including assets, building systems,
and geographic data.
The ConsensusDocs 301 BIM Addendum Execution Plan includes a comprehensive chart to assist the users
in identifying the data, software (current and planned), systems, and databases that will be used for
the project. The issues covered range from project management to building automation and controls to
furniture and equipment. The related deliverables are also important to document in order to ensure that
all parties have a clear understanding of what is expected (e.g. degree of model accuracy, geospatial
coordinate system to be used, permitted native files, and much more).
Insurance coverage is another key component in any BIM agreement. The owner should be sure that the
BIM Manager and key parties accessing the model have appropriate insurance coverage, whether or not
they actually have permissions to manipulate the model. For parties that contribute to the model,
the ConsensusDocs 301 includes a provision that insurance policies include technology or cyber
liability coverage, including “liability for exposures that include electronic security breaches,
mistakes, and unauthorized employee acts, virus attacks, hacking, identity theft or private
information loss, and infringing or disparaging content.”
Another key consideration is the intellectual property within the model. Each contributor needs to
grant each other contributor, as well as the owner and all key project participants, at least a limited,
non-exclusive license to reproduce, display, distribute, make derivative works, and other such uses as
are necessary for the project during design and construction and for archival purposes afterward. If
the owner intends to use the model after construction, it is important to require that the licenses
extend through the life of the structure, along with decommissioning and demolition. The ConsensusDocs
301 incorporates a second chart to assist the parties in appreciating and making sound determinations
regarding these issues.
In the end, owners want the best price, contractors want efficiency, and design professionals want to
preserve the project design as a whole in the face of inevitable adjustments throughout the process.
With its flexibility and transparency, BIM serves as an important bridge to serve each party’s needs.
It has been said that BIM represents some of the very best of lean building techniques and collaborations.
For those that haven’t already incorporated BIM, BIM represents a technological leap that can improve
project results. BIM will and should become an industry best practice, if we’re not there already.
About the author: Carrie L. Ciliberto, Esq. is Senior Director and Counsel of Contracts and
Construction Law for the Associated General Contractors of America (AGC), and Deputy Executive
Director for ConsensusDocs - the only standard contracts written by a coalition of 40+ design and
construction industry organizations. Ms. Ciliberto was the principal of Ciliberto & Associates, LLC,
providing natural resources, environmental and water law counsel for 10+ years. She is licensed in
Colorado, DC, and federal courts including the U.S. Supreme Court. She frequently speaks at industry
events around the nation and has authored numerous industry articles. You can reach Carrie at
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