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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 Building Information Modeling (BIM) is one innovative answer to solving outdated and inefficient “walled off” modes of operation.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 eliminate waste.

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 cilibertoc@agc.org.

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