Building Information Modeling

Thomas L. Rosenberg Building Information Modeling or BIM brings with it many advantages for the digital design of buildings. Yet with BIM comes issues and risks that a design professional must consider. Enhanced usage of electronic design and construction processes holds promises for saving time and money, reducing claims and increasing the quality of performance, especially on complex projects. One must consider and recognize however the individual risks associated with this new process. In the view of many, BIM has changed the way industry thinks about how technology can be applied to the design, construction, and management of building projects. BIM is an integrated database of coordinated information to which many participants in the design process contribute. BIM modeling provides for continuous and immediate analysis of project design, scope, schedule, cost information and other matter. Those who favor BIM identify many of its benefits as: Higher quality of work performance Better coordination among design and engineering disciplines Costs savings in the design and engineering work Increased speed of delivery

Supporters of such model based technology indicate that the globalization of the design process especially on large projects, is forcing increased efficiency. Competition in the design and engineering markets has never been greater. This competition is changing the fundamental assumptions of design and construction economies. Speed to market issues are forcing new means of collaboration including advanced design build models and more sophisticated use of internet project management. BIM is at the forefront of this movement and is viewed by many as an important tool of change and competitive advantage for design professionals. What does BIM do? It enhances the collaborative process of design and engineering. It provides an integrated database of coordinated information among the contributors to the design and engineering of a building. In addition to graphically depicting the project, BIM offers key information about the building that can be used to analyze its performance. The use of coordinated, consistent, computable information results in a reliable, digital representation of the building that can be used during the design decision process, production of contract documents, planning and building performance. BIM allows information to be kept up to date and accessible to architects, engineers, contractors and others. BIM is different than CAD. Those who are critical of CAD design mention its tedious and time consuming process, missing, erroneous or inconsistent information that can be maintained on design

documents, the difficulty of collaboration among design and engineering professionals and the important fact that conflicts detected during construction are often expensive to address. BIM, according to the proponents, avoids the problems of CAD because it does not design solely on geometric concepts. Further, it adopts the relationship between all building components. The BIM model is viewed not only in a two dimensional or three dimensional view but even greater which enhances the elimination of inconsistent design or engineering concepts. There are several BIM products on the market now. Autodesk Revit was one of the first programs. Bentley Systems, Graphisoft and Nementcheck have also entered the market. They each provide various building model systems to design a building. Previously CAD altered the design landscape. Now BIM is seen as having an even greater impact. In 2005, the General Services Administration of the United States Government announced that firms providing services to it would have to include a Building Information Model as part of their design services. But with these changes happening fast, comes risk. As the relationships among the contributors to a BIM design project are established, the boundaries of their responsibility and work product become blurred. How do we allocate risk as a result? In the old days, it was easy to determine the contributions of the designer, engineers, contractors and others. In a BIM process, this is not easily determined. Should risk be shared? Should a means be in place to track the contributions of all participants in a BIM project in order to determine who made a decision, who is responsible or where risk should be assigned? Alternatively, how does the mix of collaboration with a BIM project impact upon liability? We have no case law to guide us on the allocation of risk on a BIM project. The design concepts are too new and have not been challenged in a manner by which Courts have had to look at assessing risk. On the other hand, proponents of BIM strongly support the notion that a BIM model is the best evidence of a proper design when it is being used to defend the work of the architect, engineers and others contributing to the BIM model. When those defending the design are united, a BIM model can be the best demonstrative evidence in support of the design. Some proponents argue that shared rewards require shared risk. If a BIM project is inherently more efficient and productive than why should the risk not be equally shared among the participants. Should risk be shared based upon some means of compensation received on the project? Many of these are business issues that must be defined in the contract documents between the architect, engineers and others contributing to the BIM project. If these decisions are not addressed at the outset, the possibility for disagreement and finger pointing is great if problems occur on the project. Additional concerns exist with BIM. From the practical, such as the steep learning curve for employees to the fact that the more advanced users appear to be younger architects who often lack design experience to legal issues such as copyright and the need for everyone to be working on a project in one BIM system, creates concerns that must be considered.

Focusing on the legal issues associated with BIM requires users to contemplate these issues prior to commencement of a project. First comes copyright issues. With multiple parties contributing to the project design, sharing information and adding to the design, who owns the copyright? Unless this issue is addressed in the contract documents, disputes can arise if key design elements are used on subsequent projects. Designers are encouraged to address this issue at the outset if necessary. The best solution is to set forth in the contract documents ownership rights and responsibilities. If copyright is not an issue (and many projects are not formally copyrighted), what protection exists for the design professional to minimize or eliminate the use of its work product on subsequent projects? The Architectural Works Copyright Protection Act (AWCPA) passed by Congress in 1990 provides protection to architectural works for copyright purposes. Design of a building can be copyrighted to protect the overall form, arrangement, composition of spaces and elements in the design. Some states recognize a right to protection of drawings in the absence of a formal copyright procedure. Many contract documents including AIA documents protect the design professional from use of its work by the owner on subsequent projects without compensation and approval. Applying these concepts to BIM is difficult. In the absence of allocation of copyright responsibilities in the contract documents, designers, engineers and others face the risk that their product will be used on subsequent projects without compensation and approval. Even with use of the AIA contract, it will be difficult to allocate responsibility for the BIM project in order to protect ones work product from subsequent use. Consider the situation where the structural engineer wants to use its work on a subsequent project. Can it unbundle the design to isolate its structural concepts? The answer is likely no. Therefore, the participant in a BIM project must either address these issues in the contact documents or maintain a means by which to identify or i solate its contribution to the process. As indicated above, there is no guidance from the Courts on this subject yet. It is possible that guidance will come in the future. Who is liable for errors, mistakes, omissions or other problems that arises on the BIM project? Will we be able to tell who contributed specific tasks? On the one hand, common sense will apply. An electrical engineer will still have to take responsibility for electrical engineering issues. On the other hand, the integrated concept of BIM blurs the levels of responsibility so much that risk and liability will likely be enhanced. Consider the user or other entity that submits a claim against the design and engineering of the BIM project. That individual will likely take a shotgun approach and name all contributors to the design and engineering. In Ohio, privity of contract issues will apply and the lead professional will assume responsibility. The lead professional, usually the architect, will have to prove liability upon the other BIM contributors. While this concept may not be that different from what is currently employed on most projects, the ability of the lead professional, often the architect, to prove liability or responsibility with others will be more difficult. Consider the scenario where the owner of the building files suit over a perceived design error. The architect, engineers and other contributors of the BIM process look to each other in an effort to try to determine who had responsibility for the matter raised. If disagreement ensues, the lead professional will not only be responsible as a matter of law to the claimant but may have difficulty proving fault with others such as the engineers.

Indemnification claims may become impossible to pursue. Indemnification requires the parties seeking indemnification not to be at fault. The party seeking indemnification may be liable based on contract but is not at fault. In a BIM project can the lead designer prove that it is not at fault? Probably not. How does BIM comport with insurance obligations. While the insurance market will have to adopt to the collaborative process of BIM, the means by which to assume responsibility for a risk is unclear. AIA Document B141 addresses electronic drawings in several sections. Section 1.3.2.1 states: Drawings, specifications and other documents, including those in electronic form, prepared by the Architect and the Architects consultants are Instruments of Service for use solely with respect to this Project. The Architect and the Architects consultants shall be deemed the authors and owners of their respective Instruments of Service and shall retain all common law, statutory and other reserved rights, including copyrights. Although case law interpreting Section 1.3.2.1 focuses on ownership, authorship and copyright, it does indicate that documents, including those in electronic form prepared by the Architect and Architects consultants are to be used only with this Project and further, that the Architect and Architects consultants are the owners and authors of their Instruments of Service. While this provides some guidance, it does not eliminate or address the issues above when architects, engineers and consultants may need to address their respective authorship and ownership of a BIM model. Section 2.4.2.1 of AIA Document B141 states: The Architect shall provide Schematic Design Documents based on the mutually agreed- upon program, schedule, and budget for the Cost of the Work. The documents shall establish the conceptual design of the Project illustrating the scale and relationship of the Project components. The Schematic Design Documents shall include a conceptual site plan, if appropriate, and preliminary building plans, sections, and elevations. At the Architects option, the Schematic Design Documents may include study models, perspective sketches, electronic modeling or combinations of these media. Preliminary selections of major building systems and construction materials shall be noted on the drawings or described in writing. Section 2.4.2.1 allows the Architect at its option to provide electronic modeling or electronic modeling in combination with some other means of preparing Schematic Design Documents. This addresses the concept of electronic modeling but since AIA Document B141 was drafted in 1999, it has not kept pace with the development of recent developments in electronic modeling such as BIM. It is important to note that the use of a BIM model does not transfer responsibilities between the contributors to the design or engineering process. Rather, it may blur these responsibilities and leave to the contract documents the need to better address the responsibilities.

Use of a BIM model will neither heighten nor prevent architects from being sued. However, proponents believe that use of BIM enhances the communication and understanding between owner and architect or between architect and others contributing to the design and engineering process. Better communication obviously enhances trust and fosters project progress. What is the recommendation? The easiest recommendation is to address issues of copyright, risk sharing, contribution and the other practical considerations of BIM upfront in the contract documents. Often, however, this is not easy to accomplish. Therefore, all participants must recognize the risks and liabilities associated with this process. Courts and other tribunals may provide guidance in the future. Only time will tell.

Thomas L. Rosenberg is a Partner at Roetzel & Andress LPA,a full service law firm with offices throughout Ohio and Florida, as well as an office in Washington D.C. Mr. Rosenberg practices construction law and has represented architects and engineers for over 22 years.