Building Information Modeling (BIM) is undoubtedly a wonderful step toward total integration of information technology into the world of professional construction management and architectural design. As with any emerging technology, many issues regarding liability are just now beginning to unfold as this technology gains a foothold and, consequently, a stake in the productivity and profitability of construction firms, subcontractors and owners’ representatives.
The obligations associated with professional practice such as accuracy, punctuality of important decisions, timely sharing or submission of information and the collaboration requirements of various professions do not simply disappear with the implementation of BIM. In fact, those obligations may now be even more important. What exactly is timely submission of information? What is accuracy? What is the proper and acceptable form of communicating the information contained in any BIM project? What, if any, are the obligations of the software authors other than properly functioning software?
What is BIM?
BIM, as we now know it, is a process by which buildings and other construction projects are designed, built, operated and maintained. Some long-term plans call for BIM to be utilized in the deconstruction of these same buildings. Within this process is a software platform that will create or model the project. The model is outwardly a 3-D representation of the project. Typically, the software has the ability for the modeler to view the model from any vantage point, including a walk-through of the project. The software used to model the project is not the only component of BIM. If this indeed were the case, the potential for BIM as an emerging technology and process would be severely restricted and its use limited to design professionals.
Two additional dimensions have been incorporated into BIM-related software to depict two very important aspects of any construction project — time (4th Dimension) and cost (5th Dimension). Project developers and owners develop project feasibility plans based on occupying a building or utilizing a project from a certain point in time. If this projected timeframe is not realized, the owner incurs financial losses and routinely looks to the contractor for reimbursement of those losses or damages. Proper scheduling, or time management of the project, is vital to meeting these contractual project completion dates. The ability to look forward in time and accurately predict the status of the project, anticipate any potential schedule delays and make alternate plans has now been realized with the incorporation and development of time into the BIM process.
The 5th dimension of BIM, cost, is now being addressed by project planners, schedulers, financial officers and cost estimators. A construction project estimate cannot be complete without a schedule. In some instances, a schedule cannot be complete without an estimate that outlines all of the components, elements and assemblies that are required to complete a building. Project planners, fully implementing the capability of BIM-related software, can project cash flow needs by determining the earned values of work in-place. Historically, payments from the owner to the contractor have been based on payment applications that in turn are generated by the use of perceived percentage of completion of various tasks. The correct, or incorrect, determination of these percentages of completion can directly affect the financial success of one or more of the project principals.
Contractors that are paid for work that is not in place, commonly referred to as front-end loading, assume a liability in that they now have to deliver products or labor in order to avoid breaching their contract with the owner. On the other hand, owners that retain too much of the earned value in an effort to protect their financial interest put the contractor in peril of financial default due to the inability to pay their subcontractors and suppliers. History has shown that improper or inadequate cash flow is the principal reason for contracting firm failure. The use of the fifth dimension of BIM allows the contractor, designer, owners and subcontractors to plan their cash flow needs by utilizing an accurate depiction of the work that is projected to be in place at certain completion milestones of the project.
Unrealized Promises?
The excitement that is inherent with the introduction of an extraordinary product or process tends to apply blinders to those who utilize the product, and in many cases, the recipients or ancillary users of this new product become somewhat of a captive audience to the outcome. How should a newcomer to the product, be they a specifier of the product or end user, know what to expect from the use of this product? Think of wonder drugs that have been unleashed on the public during the last 60 years. In many instances, these drugs were touted as the definitive pharmaceutical to not only cure, but to also eradicate horrible diseases. As we now know, the result, in many cases, was not as marketed.
The advent of BIM and the promised advantages of the BIM process and technology are following this same path in the ongoing implementation and acceptance of anything labeled as BIM. Two prominent industry groups — the American Institute of Architects (AIA) and the Associated General Contractors (AGC) — have each developed contract documents that address specifically the emerging issues related to the use of BIM and its associated software. Both the AIA and AGC contracts attempt to allocate risk in ways the drafters deem fair and appropriate. However, by its very nature, with different trades and perspectives involved, and the collaborative nature of BIM, parties may end up doing work outside their usual role, which could lead to liability exposure outside that party’s traditional area. Whether using the AIA, AGC or other forms, the contract documents should try to clearly outline the relationships between owners, designers, contractors and subcontractors, the rights and responsibilities of each, the scope of each, the level of detail contractors and their subs can rely upon, and issues such as shared risk, dispute resolution, and communication.
BIM Litigation
The first litigation involving the use of BIM was initiated in 2009 by a general contractor relying on a BIM model that was provided by the project architect. The claim revolved around the construction of a life-sciences building at a university. The architect and its mechanical-electrical-plumbing engineer used BIM to fit the building’s MEP systems in the ceiling plenum. However, the design team failed to tell the contractor that the extremely tight fit depended on a very specific installation sequence. When the contractor ran out of space when only 70 percent through the assembly of the system, disaster (and litigation) ensued. In this case, the failure to properly communicate information and the failure of the contractor to have a full understanding of the process and the product, led to unrealistic expectations that ultimately cost millions of dollars to litigate and settle.
As can be seen from this cautionary tale, for BIM to work effectively and as intended, there must be adequate communication between all parties to the projects — the design team, the contractor and the subcontractors. Communication must take place not only with respect to design, but also scheduling, sequencing and project status. There must be clear and open communication between contractors/subcontractors as to means, methods and sequencing of work so the design team does not make erroneous assumptions in the model. In addition, all players in a project must have BIM training. While communication is incredibly important, if the players don’t know how to use BIM, the greatest communication could fall short.
Absent proper communication and collaboration, there will be finger-pointing among the designer and contractors as to who was responsible for what and why.
BIM is an amazing tool and, when used properly, can lead to amazing benefits for all parties. However, it is not for everyone, and it has its limitations. Like many programs, many of its limitations flow from its users. If the users don’t have a working knowledge of BIM and effectively communicate with all parties, the use of BIM could lead to more harm than benefit. Currently, other than evolving contract language and various government agencies, private owners and a small number of design professionals dictating the use of BIM for their projects, no clear, proven and accepted method of specifying BIM or its implementation into the Integrated Project Delivery method has emerged. Liability associated with the use of BIM will by default establish the accepted industry and professional practice for BIM. In order for BIM to progress, standards for implementation, utilization, responsibility to other project parties and risk/reward sharing must be established and disseminated throughout the architecture, engineering and construction professions.