Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
118 BIM is designed to provide a collaborative data environment that breaks down the tradi tional silos among the various life cycle phases of a facility. While this approach provides benefits in improved communication and coordination of activities across those life cycle phases, it comes into direct conflict with the traditional manner in which risk and liability have been managed contractually. In most cases, architects, GCs, and owners all seek to control and limit their risk and liability. Each team member would prefer to tightly control its participation and communication within the facility development and management life cycle to minimize its risk. Development of a new contractual framework that incentivizes open communication and the sharing of facility information is necessary to fully benefit from BIM. For design and construction, two primary BIM contract models have been developed. The American Institute of Architects (AIA) developed the E202 BIM Protocol Exhibit, and the Associated General Contractors (AGC) developed the Consensus Document 303 BIM Adden dum. Much of the language in these contract templates focuses on the handover from design professionals (architects and engineers) to GCs. There are similar handover issues experienced by owners when BIM is delivered to them after construction using either template. This section will discuss the primary legal and liability issues owners need to consider when implementing BIM for their airport organizations. These include ⢠Liability ⢠Ownership of the BIM ⢠BIM legal status ⢠Digital data delivery 12.1 Liability Traditional project delivery models encourage owners, architects, engineers, and GCs to work toward minimizing their risk and liability by shifting it to other members of the team. This shifting of risk does nothing to reduce the overall risks associated with the development of the facility but rather seeks to protect the interests of each contributor. A description of how this works follows. 12.1.1 Architects/Engineers The doctrine of privity has traditionally protected architects and engineers from claims made by GCs utilizing their designs. The doctrine provides that a contract cannot confer rights or impose obligations upon any person who is not a party to the contract. Privity protects the architects and engineers from parties with whom they do not have contracts. In a S E C T I O N 1 2 BIM ControlsâLegal and Liability Issues
BIM ControlsâLegal and Liability Issues 119 designÂbidÂbuild contract, there is no direct contractual relationship between the architects and engineers and the contractors. The extent to which the privity doctrine is accepted varies among legal jurisdictions. In collaborative contractual environments such as designÂbuild, construction management at risk, and integrated project delivery, the architects and engineers do share a common contract with the general contractor. Evidence of collaboration reduces any protections privity might afford them. While this decreases the ability to shift risks to other parties, the improved communications among all the contributors to the project help to identify and resolve design issues much earlier in the life cycle process. BIM may reduce each entityâs overall risk and liability exposure. 12.1.2 General Contractors The Spearin doctrine is the primary means utilized by GCs to reduce their potential liability on projects. This doctrine states that there is an âimplied warrantyâ that the design documents are âfree from defect.â This enables the GC to recover costs for any changes required during construction based on design errors and omissions. Spearin does not protect a GC from performanceÂbased specifications that specify how to build a system and the operational performance level the system must achieve. For example, while construction documents include shop drawings for the layout of HVAC mechanical equipment and ductwork, a performance specification might state that a minimum of 360 cfm is delivered to each office. The burden is then on the GC to construct to that performance specification and test to the satisfaction of the architects and engineers that this has been achieved. BIM diminishes the protections of the Spearin doctrine because, in a collaborative environ ment, the GC can contribute to the detailed design. This opens an exception to Spearin that removes the implied warranty. While BIM may diminish the protections of the Spearin doctrine, it also enables the GC to produce a more constructible facility early in the design process, reducing the GCâs overall risk. 12.1.3 Owners Airport owners must manage their risk and liability with the use of the contracts developed to manage the delivery process. If the airport wishes to utilize a full life cycle BIM approach, these contracts must also include the digital data delivery specifications that are required to utilize the BIM to support O&M activities after project handover. Unless CMMS integra tion is included as part of the project delivery requirements, or as part of a commission ing requirement, the liability for properly specifying the AIRs is the ownerâs. Thus, the owner should be actively involved early in the process of detailing the data that need to be collected and the delivery format. The owner must remain actively involved in the commissioning process to ensure that the ownerâs data needs have been met before acceptance of the asset for operation and use. 12.2 Ownership of BIM Standard AIAÂbased contracts specifically state that âno ownershipâ right of the design documents is transferred to any other entity. These contracts only allow for a limited license to use or modify the design. The limited license can be an issue if the owner wants to reuse the design documents for future renovations and may limit the transfer of the design data to other consultants for facility management applications.
120 BIM Beyond Design Guidebook The use of BIM potentially includes intellectual property developed by the architects and engineers, such as 3D model libraries, that would subject those libraries to being copied and illegally distributed if shared with other consultants working for the airport. Architects and engineers are also concerned with liability that might arise from the reuse of their designs by parties who might modify the model without the input of the design architects and engineers. The following licensing requirements can address these issues: ⢠Owner maintains ownership and copyright of BIM after project handover. ⢠Designerâs liability is minimized for any future uses or modifications. ⢠Designerâs model libraries are contractually protected from reuse outside the scope of the project BIM (i.e., other consultants may not copy or reuse). There may be architects and engineers unwilling to agree to such terms. The legal frame work for BIM was still evolving at the time this Guidebook was being written. However, the licensing requirement terms listed previously will provide the owner with the broadest rights necessary to modify and reuse the BIM for the O&M life cycle. Such terms are already in use in the design and construction contracts at DEN, and their sample contract language is included as Appendix A. 12.3 BIM Legal Status The legal status of BIM as a contractual document is still fluid. Signed and sealed 2D plans are still the primary basis for existing contracts. There is no settled determination on the legal status of a ârecord BIMâ that is delivered at project handover; however, owners have a few options they can follow (see Sections 12.3.1 and 12.3.2). 12.3.1 BIM as Supporting Specification Under this option, the 2D plans and specifications remain the legal standard, and BIM is supplied as âadditional informationâ with no contractual legal status. It is supplied for the ownerâs use, but with no corresponding guarantee of completeness or accuracy. 12.3.2 BIM as Contract Document Under this option, the BIM is delivered as a legal document, and the 2D plans are verified as being generated from the BIM. Even if the 2D plans are generated and linked to the BIM, the BIM and 2D plans may still contain additional information. The 2D plans may contain additional annotation. The BIM will contain not only additional asset information that is not included in the plans and specifications but also information on asset interdependencies that is only accessible in a programmatic manner. If both BIM and 2D plans and specifications are contract documents, then an order of precedence will be required to identify which one has the primary legal authority if there is a conflict between them. Federal Acquisition Regulation 52.236Â21 states that, if a conflict arises between specifications and drawings, the specifications will have precedence. The AIA suggests precedence of drawings over specifications. BIM encompasses the data in both the drawings and the specifications, so clear legal guidance is not yet established on the best practice (other than that there should be clear precedence specified to resolve potential conflicts when they arise). A further complication is that BIM also captures shop drawing informa tion used to secure final architectsâ and engineersâ approvals before fabrication or installation of an asset.
BIM ControlsâLegal and Liability Issues 121 12.4 Digital Data Delivery BIM is a combination of data traditionally received from drawings and data received from specifications. However, the BIM contract requirements need to define how the digital specification data are going to be delivered to be interoperable with the airportâs existing facility management infrastructure. An AIR should be developed that identifies what types of asset information need to be collected and in what format the information should be delivered. The UKâs PAS 55Â2:2008 Asset Management Guidelines provide some guidance on what should go into an AIR, including legal, commercial, financial, technical, and managerial asset data. The AIR can be organization specific, based on the existing airport asset data dictionary and facility management structures, or it can be structured around a standardsÂbased information exchange (such as COBie) to maximize interoperability with other standards based facility management tools and systems. Regardless of the standards, the digital data delivery requirements must be detailed as part of the project delivery contracts to minimize the cost of using BIM for facility management and to minimize the time required for digital data integration from BIM. 12.5 Summary The development of legal structures that will incorporate BIM is still fluid, and case law is not extensive enough to establish best practices. Owners need to structure their design and construction contracts for new facility construction and renovation to prioritize their interests and identify their requirements for acceptance of the asset, particu larly if they intend to utilize BIM to assist in the maintenance of that asset. While the AIA and AGC have developed standard BIM contract exhibits, they seek to limit their own respective risks and liabilities while maximizing protection of their ownership of the BIM. Owners should develop contracts that protect their own interest. BIM for life cycle asset management dictates that additional contractual considerations be evaluated by owners to ensure their ownership rights and digital data delivery requirements are met to support their facility management needs. Section 12 Checklist 1. Develop design and construction contract language for BIM that addresses the issues of liability, ownership of the BIM, the legal status of BIM as a contractual document, and digital data delivery. 2. Provide outreach to airport consultants and contractors on new contracting requirements related to BIM.