by James D. Coleman, Associate

BIM’s Promise

The emerging use of Building Information Modeling (BIM) in both the design and construction of projects has been a hot topic in the building industry over the past several years.  BIM’s big promise is an electronic model of the complete enterprise that follows the project from design concept through construction and beyond.  That promise includes not just unprecedented levels of design visualization and coordination, but also more efficient construction with fewer change orders.  Additionally, the ideal BIM project continues to use the model long after construction is complete.  BIM would both predict and help manage energy use and maintenance costs and even guide the project’s demolition and recycling.  The federal government’s General Services Administration is so taken with the technology’s potential that its Public Building Service is “actively pursuing a policy” to use BIM on all major GSA projects.  Comprehensive project modeling is a great leap forward in the way buildings and other structures are designed, built, and operated; however, like many new technologies it adds a few wrinkles to the legal landscape that owners, designers, and contractors should consider.

Ownership – An Unresolved Problem

A problem with BIM that remains unresolved is the question of ownership and control of the electronic models.  Creating the design model is a collaborative enterprise involving designers and consultants of various specialties.  In BIM’s current state of development, the design model is not used by the contractor to guide fabrication of the projects components.  Instead, the collaboration continues into the construction phase with specialty contractors developing an integrated construction model utilizing the work of their respective specialty’s designer as a starting point.  The construction model is then refined and validated against the design model, and each model is updated with changes in building requirements or as needed to resolve conflicts.  The evolution of the models may continue once the building is in operation.  Consequently, these models could be the products of perhaps dozens of separate entities.

Existing copyright law would give each entity that contributes its original work to a model part ownership of the model.  This diffuse ownership of the models is not inevitably a problem, but if there is a dispute, then undefined (or hard to determine) ownership of the model would add an unnecessary and potentially expensive complication in litigation as the model was unraveled to assign ownership for its components and litigated to determine liability for its flaws.

Form Contracts Do Not Yet Provide the Answer

Such lack of clarity is not inevitable, but avoiding it requires the parties to make an agreement that clearly defines control and liability of the collaborative database.  Otherwise the parties’ rights and obligations will default to generalized copyright law probably combined with a form contract that is written assuming that there are conventional plans and specifications.  The prominent form contract organizations have recognized that standard agreements do not adequately address electronic design documents.  Consequently, all have proposed their own standard form agreements or terms regarding electronic designs; but none, so far, has adequately addressed the special challenges of BIM.  In the case of Engineers Joint Contract Documents Committee (EJCDC) and the American Institute of Architects (AIA) it may be because these are designer-driven organizations with predictably designer-oriented agreements.

The use of BIM, however, is an owner-driven decision.  In part, this is because the building owner is the only party involved in every phase of the model’s development and use.  Also, as is certainly the case with GSA, the owner is the party that is requiring BIM’s use and is willing to pay for the software, data hosting, and management that BIM requires.  With these circumstances it would appear an owner-driven agreement should govern control and ownership of the model.

An owner-driven agreement does not necessarily require that the project owner have outright ownership of the project model.  However, to realize BIM’s potential, the project owner must be able to control and use the model as a whole, not only through design and construction, but throughout the project’s life cycle.  The owner must control the model as it controls the project.  An agreement that serves the designers’ concerns in assembling the design model and serves the builder’s needs in assembling the construction model will not necessarily serve the owner’s needs once construction is complete.

Outright ownership of the model by the project owner is tempting to suggest, but an owner cannot own the model the way it owns the building.  Even though a BIM model is unique, it is an assembly of numerous entities’ proprietary contributions.  This fact causes the analogy of model ownership and building ownership to breakdown—owning an emergency generator and owning the design for that piece of equipment are different things.  However, all that an owner requires is an agreement with its team members that includes a well developed but reasonably limited right to use the model and all of its constituents for the life of the project.

This right to use of a complete design is not a new concept.  Owners and designers have been in tension regarding the use and ownership of the designers’ “instruments of service” for some time.  The standard AIA owner-architect agreement contains a clause granting the owner a non-exclusive license to use the architect’s design for the project’s purposes.  But electronic documents, with their portability and ease of reproduction, have created heightened concern in the architectural community regarding control of their intellectual property.  Product manufacturers would have even greater concern about maintaining control of their products’ unique design features.  BIM predictably exacerbates these worries by its very nature: it is a database whose reason for existence is continuous sharing of its content.  Furthermore, its only tangible corollary is the building it models.  It is not like a CAD file which is a digital representation of a drawing.  A BIM database is a virtual representation of a building and all its components.

Form Contracts Can Actually Add to the Problem

BIM’s unique attributes mean that some frequently seen owner-architect clauses could create peculiar consequences for an owner seeking to control and use a model for which the designer remains liable.  As an example, EJCDC’s standard owner-engineer agreement states that an owner can only rely upon “hard copies” of the design.  Electronic versions are only “for convenience.” Since a BIM model has no direct ‘hard copy’ analog, is the engineer of a failed model off the hook? Probably not, but that contract clause would not be of any help in resolving a liability dispute where the project model plays a prominent role.

This disclaimer of reliability of electronically provided documents is not unique to EJCDC.  Architects frequently require contractors to sign an architect’s disclaimer of liability when contractors request CAD files for contractors to use in the development of their shop drawings.  A similar disclaimer of reliability in a BIM project would create an odd platform for a project team to make the significant investment in the personnel, software, and effort required to produce a comprehensive project model.  It would be strange to create a model from electronic transmissions of data that carried no warranty of reliability.

Of all of the form contracts, ConsensusDOCS is probably the most in tune with the modern reality that owners, contractors, and designers do, in fact, rely upon the accuracy of electronically transmitted information regardless of whether their form agreements reflect that reliance.  ConsensusDOCS 200.2 includes a term entitled “Reliance” which states that the parties agree that electronically transferred information is reliable as long as the protocols established by the agreement are followed.  The form’s comprehensive protocols are a good, if somewhat intimidating checklist for a team embarking upon any project, where electronic collaboration will be extensively utilized.  The form is a worthy template for a BIM data agreement.

ConsensusDOCS also offers a “BIM Addendum,” (ConsensusDOCS 301) which provides another checklist for the use of BIM on a project.  In contrast to ConsensusDOCS 200.2, it offers elective levels of reliance, from “accurate” to “reference only,” and defers critical questions regarding the extent of BIM utilization until after contract execution when a “BIM Execution Plan” would be adopted.  This approach treats BIM as an adjunct to the building process rather than the guiding force.  In addition, if both 200.2 and 301 were used, it could create an odd dichotomy where the electronically conveyed components of the model are reliable, but the sum of the parts is not.

In a similar vein, AIA offers a “BIM Protocol Exhibit” (AIA E202) issued in 2008, which also seeks to find a middle ground on the question of reliance upon the model.  It allows each element of the model to have a designated degree of reliability.  It is a compromise solution that sidesteps addressing the control and use of the model as a whole by dividing it up into its constituents.  The approach is akin to marking the drawings and specifications for a building with labels of “reliable,” “somewhat reliable,” and “not reliable.” The AIA form also ignores the fact that, in BIM’s present state of development, the construction and design models are separate.

EJCDC has not issued any BIM forms.  Its standard form agreements have terms regarding electronic documents, but they are designed primarily to define ownership, copyright and licensed use.  The EJCDC terms are inadequate to address the integrated whole of an electronic project model or the manner in which that model or models are created.

These shortcomings do not mean that these forms are not useful.  AIA and ConsensusDOCS are both struggling to address an emerging and evolving technology, and their forms are effective in defining the ownership and use of each designer’s contribution.  What they leave inadequately addressed is the control, use, and reliability of the sum of the parts: the models.

Because of their limitations, these forms cannot be used with the fill-in-the-blanks approach that marks the use of many contracts forms.  While any form contract is more effective when customized to the project, in the case of a BIM project, these contract forms are no more than jumping-off points for an agreement that fully addresses the development and use of BIM through the project’s lifecycle.

A Detailed Agreement Regarding Use and Ownership of the Model is Advisable

There is a hazard in not directly addressing the question of ownership and liability for the models.  Without a prior agreement, the questions of who owns the models or who is clearly liable for their flaws could be answered as “anyone” or “no one” on the team.  An apt analogy is to consider the designers and contractors as authors of a book.  When each writes a chapter for the complete work, the authorship and ownership of each chapter is identifiable.  Lacking an agreement to the contrary, each author maintains rights and liability for its work.

But as the parts of the work become more collaborative, it becomes more difficult to separate ownership and liability for the parts of this book.  A BIM design model can be analogized to a book in which the architect is the “author” providing an introductory chapter followed by rough chapters that to a greater or lesser extent, outline the completed work.  Then, the architect’s consultants as “coauthors” further refine and develop each chapter (the design model).  Thereafter, the entire work (the design model) is given to a new team of “authors” (the trade contractors) who rewrite the chapters (the design model) in the form of a construction model.  The construction model, though, in a different language, includes every chapter of the original, and carries the requirement to be true to the original’s content.  During the project, every “co-author” could refine various parts of the work.  Who then is liable for the completed book? Modern computer technology can identify the author of every word, every change, and every addition, but with so many collaborators, apportioning ownership and liability would be exceedingly difficult without the guidelines of a detailed prior agreement.

From an attorney’s perspective, the ambiguity resulting from the lack of such a prior agreement is a recipe for protracted and complex litigation.  From an owner’s perspective, the problem would manifest itself earlier as the inability to resolve project disputes, a situation that tends to lead to litigation.  This is not to say that BIM itself is a recipe for litigation.  The technology allows and perhaps even forces a level of cooperation and coordination that can resolve many of the conflicts on a computer screen before they are set in concrete and lead to law suits.  Fully utilized, BIM may also provide owners with a realistic picture of what they are buying before millions of dollars are committed to an undertaking.  Fewer conflicts and realistic expectations can mean fewer disputes, better buildings and more profits.  However, maximizing the opportunity to realize that goal would be helped by owners taking the lead and collaborating with their architects and contractors to carefully define both the BIM process and the ownership and control of the BIM models from the outset.  In that way BIM’s promises have a better chance of being realized and its liabilities mitigated.

The information or opinion provided in this article is the author's own and not necessarily that of Watt, Tieder, Hoffar & Fitzgerald, LLP. The author is solely responsible for the information and opinion that he or she has provided. The information contained herein does not replace seeking specific legal counsel to directly address individual client needs.