Avoid Pitfalls

 LEGAL RISKS 01There are some legal risks with BIM.   

By Jeremy P. Brummond and Patrick J. Thornton

The number of architects, design professionals and contractors that have been using building information modeling (BIM) has increased dramatically over the past 15 years.  BIM – which the American Institute of Architects (AIA) and Associated General Contractors of America (AGC) respectively define as the “digital representation of the physical and functional characteristics of a project” and “the development and use of a computer software model to simulate the construction and operation of a facility” – allows for all project participants to more easily visualize the project’s design and collaborate on revisions and modifications.  

BIM’s true benefit is that it enables project participants to identify potential pitfalls and clashes of trades and components during constructability reviews, rather than on site during the course of construction, which could cause temporary shut-downs, demolition, re-work, and delay.    

While the use of BIM continues to rise and its benefits are abound, it is not without inherent legal risks.  Unfortunately, few appellate courts have addressed cases involving BIM, so there is relatively little guidance on these legal risks.  A construction or design professional’s right to rely on another’s model, whether the BIM creator met the “standard of care” in creating its model, and ownership of the BIM are all questions that need further legal development in our case law.  At this time, it is generally unclear how, assuming normal facts and the absence of clear contractual language otherwise allocating risks and ownership, courts will decide these issues.  

The absence of clear legal authority, however, provides all the more reason for design and construction professionals to mitigate their risks by clearly articulating in their written agreements their expectations as to use of the BIM, rights to rely (or not to rely) on the BIM, and ownership of the BIM. In addition, the lack of significant legal authority creates reason for any company involved in the creation of the BIM to consult with its insurance professional to insure adequate coverage if a claim is made against the company based on errors or omissions in the BIM.  

Perhaps the most significant risk associated with BIM involves whether, and to what extent, a project participant may rely on all or parts of the BIM. Construction and design professionals have to be concerned regarding potential claims for breach of contract, negligence or negligent misrepresentation brought by a project participant that suffers a loss caused by its reliance on inaccurate BIM.  The contract may include warranties pertaining to the BIM (creating liability for errors and omissions in the BIM), but even without an express warranty, risk of claims arising out of inaccurate BIM exists because of the implied warranty of accuracy of design plans, which the Supreme Court first recognized in the context of governmental owners in U.S. v. Spearin, 248 U.S. 132 (1918).  

Depending on particular state law, a project participant who has no contract with the BIM creator may also be able to assert a claim for negligence or negligent misrepresentation against the BIM’s creator.  Some courts allow such claims based on the Restatement (Second) of Torts, §552 which states: “[o]ne who, in the course of his business, profession or employment … supplies false information for the guidance of others in their business transactions is subject to liability for a pecuniary loss caused to them by their justifiable reliance on the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.”  

Examples of contract documents developed to address the unknown legal risks are the AIA Documents E203-2013 (Building Information Modeling and Digital Data Exhibit) and G202-2013 (Project Building Information Modeling Protocol Form). These documents address the risks associated with reliance on BIM by calling for the parties to clearly specify and delineate whether project participants may rely on BIM at all and, if so, to what extent and for what purposes. In E203-2013, §4.1, the parties are to select whether or not BIM will be used and relied on during the project.  Next, if the parties select that they may share, develop and rely on the BIM, they must provide more information to clarify the extent the BIM is to be developed, its authorized uses, and the extent to which the parties can rely on it.  For example:

• In E203-2013, §4.2 (“Anticipated Building Information Modeling Scope”), the parties set out the portions of the project that will be modeled (e.g., the structural, mechanical, plumbing and/or electrical components) and the project participant responsible for modeling each of those portions.

• In E203-2013, §4.3 (“Anticipated Model Authorized Uses”), the parties record the anticipated authorized uses for the BIM (e.g., for construction sequencing, construction coordination and cost estimating).

• In G202-2013, Art. 2 (“Level of Development”), the parties further define the extent to which the BIM may be used and relied on by assigning one of five “levels of development” (LOD) to each BIM element at a given milestone. The LOD specification entails two components: the required minimum content for the BIM and specific authorized uses (e.g., analysis, cost estimating, scheduling, coordination). It is intended that this section should be coordinated with the anticipated authorized uses listed in Section 4.3 of E203-2013.   

The AIA documents go on to place the risk of relying on the BIM, to the extent not authorized, on the relying party, not the party having provided or created that part of the BIM.  If the parties selected at E203-2013, §4.1, that the BIM is not to be relied on at all, that section states “[u]nless other agreed in writing, any use of, transmission of, or reliance on the Model is at the receiving Party’s sole risk.” Further, E203-2013 §4.7 provides that “any use, transmission or reliance not specifically authorized is at that Party’s sole risk.”  

It is also worth noting that AIA Document A201-2017 (General Conditions of the Contract for Construction) provides that if the parties do not agree on protocols governing the use of and reliance on BIM, then any use or reliance on BIM by either party shall be at that party’s “sole risk and without liability to the other party and its contractors or consultants,” as well as without liability to the authors and contributors to the BIM.

Other industry forms (see, e.g., ConsensusDOCS 301, Building Information Modeling Addendum) also include provisions to address legal risks associated with BIM. 

Surprisingly, many standard contract documents, including the AIA documents discussed, do not specifically address which party owns the copyright to the BIM.  Traditionally under copyright law, whoever creates a work owns it. BIM may utilize data and information created by many different parties, and thus the answer of who retains copyright to the model itself may not necessarily be clear.  

E203-2013 only addresses this issue insofar as stating that in Article 2 (“Transmission and Ownership of Digital Data”) that the “transmission of Digital Data constitutes a warranty by the Party transmitting [it] that the transmitting Party is the copyright owner of the Digital Data, or otherwise has permission to transmit [it].”  The AIA Commentary to E2013-2013 goes on to explain that it “is assumed that E203 will be used in conjunction with other AIA Contract Documents standard form agreements, which generally provide that copyright ownership of the Instruments of Service (which would include a Model) resides with the individual or entity that created them.”  

According to Article 12 (“Copyright and Licenses” of AIA Document A141-2014 (Standard Form of Agreement between Owner and Design-Builder), there is not necessarily a single BIM owner.  Instead, each design professional is “deemed the authors and owners of their respective Instruments of Service, including [any part of the BIM], and shall retain all common law, statutory and other reserved rights, including copyrights.”  If the parties thus intend that a single entity (such as the Owner) hold the copyright to the BIM in its entirety, they should include express provisions stating as much in their contract documents. 

Model Integrity

One additional risk relating to BIM warrants discussion.  As noted above, the potential efficiencies of BIM are numerous.  Axiomatically, however, BIM is only useful if the parties can use it.  If BIM is not properly implemented, if the model is corrupted, or if the parties lose access to the underlying data, then BIM’s advantages disappear and there is a resulting risk of delay to construction and failure to achieve timely completion of the project.  

The AIA Documents address this risk by requiring the parties to agree to extensive protocol regarding the generation, storage, access and transmission of Model Elements. For example, G202-2013, §1.4 (“Technical Requirements”) calls for the parties to describe the software and hardware requirements for the modeling, including the software and release version, because it is anticipated that certain uses for the modeling require specific software capabilities.   

G202-2013, §1.5 (“Training and Support”), calls for the parties to take on any training or support, either individually or collectively, necessary to implement and maintain the modeling.  E203-2013 §4.8.2 (“Model Management Protocol Establishment”) and G202-2013 §1.7 (“Model Management Protocols and Processes”) call for the establishment of protocols that address, among other things, the BIM’s origin point, coordinate system, file formats, storage locations, the process for transferring and accessing files, naming conventions, the process for aggregating files from various software platforms, access rights and security requirements.

These are just a few areas involving risk associated with BIM. The key for parties implementing BIM to avoid risk is to discuss and clearly articulate their mutual expectation for how to develop, use and rely on BIM, in every aspect, from the start of a project until its completion.  

Jeremy P. Brummond practices in the litigation department at Lewis Rice in St. Louis, Missouri, with a focus on engineering and construction. He can be reached at [email protected] Patrick J. Thornton practices primarily in the areas of construction and environmental law, commercial litigation, and medical malpractice at Lewis Rice. He can be reached at [email protected]

 

 

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