CONTRACT ISSUES IN THE USE OF CONSTRUCTION BUILDING INFORMATION MODELLING

KIMBERLY A HURTADO Managing Shareholder, Hurtado, SC, Milwaukee, Wisconsin and PATRICK J OCONNOR, JR Partner, Faegre & Benson LLP, Minneapolis, Minnesota

I.

INTRODUCTION

The use of computer-assisted virtual design modelling, also known as building information modelling or BIM, is strongly on the rise in the construction industry. Given its more robust ability to depict buildings than conventional two-dimensional computer-assisted drawings (CAD), BIM is growing in popularity, particularly amongst structural engineers and steel fabricators, whose work with complex shapes lends itself most readily to this technology. At present, the sophistication of BIM software and model development are not without their limitations, but as demand grows, so do the inventive solutions to augment the power and applications for BIM. Part of the challenge in understanding BIM is that it encompasses both a new, interactive process for creating project designs, as well as a significantly enhanced design product, a digital, parametric1 model capable of furnishing information that 2D drawings and specifications alone cannot provide without significant effort. This technology is not merely a computerised geometric depiction of a building gleaned from line renderings using the Renaissance artists ability to trick the eye into perceiving three dimensions using drop point perspective. Instead, with BIM, data-rich or intelligent objects, referred to as elements, are incorporated into the model (in reality, a series of related models that collectively are often referred to as the model) that are capable of providing further information about themselves in a variety of ways that include, but are not limited to, 2D drawing sheets, schedules and 3D visualisation. Scroll over an 1-beam in a computerised BIM model and a text box opens that will confirm the length, width and other physical dimensions of the beam, its method of connection to
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The term parametric describes a process by which an object is modified in one view and automatically updates in all other views and schedules. For example, if you move a door in an interior elevation view, the floor plan will automatically update. Or if you delete a door, it will be deleted from all other views and schedules. You can even delete a door from the door schedule and the drawings will instantly be revised to reflect the change. A major goal ... is to eliminate much of the repetitive and mundane tasks traditionally associated with CAD programs to allow more time for design and visualization. For example, all sheet numbers, elevation targets and reference bubbles are updated automatically when changed anywhere in the Project. It is impossible to have a mis-referenced detail tag. Daniel John Stine, Commercial Design Using Revit Architecture 2008, Ch 1-1 (Scroff Development Corporation, 2007) (hereafter, Commercial Design).

surrounding components, of what material it is made, where it will be manufactured, and a model or part number for the piece. Depending on the auxiliary software used with an architectural base model, it may have the ability to confirm the cost of the beam and when it is available for delivery to the project site. This information, in turn, can be automatically incorporated into project material take-off lists, as well as scheduling and budgeting reports (referred to, respectively, as 4D and 5D modeling).2 Change the size of the room in which the beam is depicted and the associative features of the model will change the beams length to conform, confirming its increased cost, as well as the impact on project schedule, to secure the longer beam from the manufacturer. Modify the floor plan view to incorporate that design change, and the software automatically adjusts related sections, details, elevations and schedules to conform to the new design constraint. The risk of error arising from inconsistent modification of design documents is thereby reduced. Moreover, this access to immediate information opens rich value-engineering options, allowing for more informed decisions in selecting design alternatives than any prior design technology permitted. It is not surprising that the legal community is struggling to assist in developing meaningful contract terms relating to the use of this technology, given the speed with which it has appeared on the construction scene, the lack of industry standards about what BIM is and does, disagreements about the process best used to generate model design and what deliverables should be derived from the completed model. The National Institute of Building Sciences has grappled with a functional definition of BIM for several years, just recently beginning the process of setting industry standards for the use of this type of modelling software. NIBS current working definition describes BIM as digital technology to establish a computable representation of all the physical and functional characteristics of a facility and its related project/life-cycle information, [that] is intended to be a repository of information for the facility owner/operator to use and maintain throughout the life-cycle of the facility.3 This definition focuses on BIM as a product and intriguingly hints at the potential breadth of its applications, but is silent as to the means by which a model is produced. Similarly, other industry groups that have begun writing contract documents governing digital communications and BIM simply assume the form user is knowledgeable enough about the capabilities of this technology to specify the process for model development and the end results that the model must achieve.4 As a result, it is important to have a working
For an overview of 4D design using BIM, see Willem Kymmell, Building Information Modeling: Planning and Managing Construction Projects with 4D CAD and Simulations (McGraw Construction, 2008); see also Andrew Roe. Building Digitally Provides Schedule, Cost Efficiencies, 4D CAD is expensive but becomes more widely available, Engineering News-Record, February 2002. 3 National Institute of Building Science, http://www.nibs.org. NIBS book, National Building Information Modeling StandardVersion 1, Part 1Overview, Principles, and Methodology is available at www. facilityinformationcounsel.org/bim/publications.php. 4 See, e.g., the American Institute of Architects AIA E-201 (2007), Digital Data Protocol, available at www.aia.org, and the ConsensusDocs 200.2 (2008), Electronic Communications Protocol Addendum, para. 4.4.1, and ConsensusDocs (2008), BIM Addendum. The 200.2 is available at http://www.consensusdocs.org/catalog_general.html; the BIM Addendum is scheduled to be published by ConsensusDocs on 30 June 2008. These industry form contracts presume the user will define the process to be used to develop a BIM model and what design product and end uses the model will serve for the particular project. They offer no real guidance as to what best process and end products should be.
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understanding about the terminology unique to virtual modelling and to he aware of emerging trends as to its use to assist in preparing contract terms that describe a meaningful model production process, performance specifications and deliverables to be derived from the completed model for the specific project. II. THE BIM DESIGN DEVELOPMENT PROCESS

When designing using BIM software, a designer begins by setting constraints for each family of elements used in the building, such as walls, windows, doors, stairs and other primary building objects, specifying the materials of which the element is composed and how it relates to other design elements within the building. The software then uses this information to generate specific instances of building elements that, in turn, are used to generate the graphic model consistent with those constraints, with each instance being capable of expressing design intelligence to the extent specified by the modeller.5 BIM software also contains libraries of cut-and-paste templates for various common design components, such as windows, doors and trim, railings, ramps, cabinets, furniture, landscaping, and light fixtures, which can be added into the design model with or without customisation. The BIM design process allows for a far more interactive compilation of design data from multiple sources than traditional 2D design development. There is an opportunity for early development of structural grids and columns, mechanical, electrical, plumbing, building skin and similar components by including them in the base architectural model as early as the development of the initial floor plans of the modelled building.6 Floor and ceiling plans, along with building exterior elevations, are then generated by the software consistent with the architectural, structural and other component data. One of the more highly touted aspects of BIM is its ability to make early detection of design conflicts among the base architectural designs, the consultants auxiliary designs and contractors design-build portions of the project, shop drawings and manufacturing data. Instead of light table overlay review of 2D plan sets supplied by each party, the model adds contributed designs of structural engineers, contractors and material manufacturers directly into its interlocking matrix and a clash detection program highlights each of the overlapping elements in conflict with each other (for example, identifying a structural beam and a plumbing pipe that have been designed by two different modellers to run through the same contiguous space).7 To resolve clashes, the parties contributing to the model meet as a group in an over-theshoulder review of the model, making determinations jointly as to the best means of resolving
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For example, from within a pre-created family of basic wall types, the designer can select and develop an instance for an exterior wall system made of brick with a concrete masonry unit (CMU) infrastructure. That instance can then been repeatedly placed throughout the model wherever that exterior wall system is intended to he used. See generally Commercial Design, Ch 1-2; Chuck Eastman, Paul Teicholz, Rafael Sachs and Kathleen Liston, BIM Handbook, A Guide to Building Information Modeling for Owners, Managers, Designers, Engineers, and Contractors, (John Wiley & Sons, Inc, 2008) (hereafter BIM Handbook). 6 For an interesting case study that describes the interactive process that can be used to develop a model and ways in which benefits from its use can be maximised, see H Thomas McDuffie, BIM: Transforming a Traditional Practice Model into a Technology-Enabled Integrated Practice Model, http:/ /wwwaia.org/print_template.cfm?pagename=pa_a_200610_bim; see also Finish Jernigan, BIG BIM, little bim The Practical Approach to Building Information Modeling Integrated Practice Done the Right Way, Ch 2 (4 Site Press, 2007). 7 BIM Handbook, 6.5, Reduction of Design Errors Using Clash Detection, pp. 216-218.

each conflict. This has two benefits: space and adjacency conflicts are resolved during design phase rather than being discovered in the field and the design solution for each clash permits adjustment via the most cost-effective design modification. Rather than adjusting the drawings that would typically come later in the design process using 2D CAD, the architectural and structural designs are as easily modified as mechanical designs or shop drawings in reaching a design solution to resolve the clash. III. ISSUES TO BE CONSIDERED WHEN PREPARING CONTRACT PROVISIONS REGARDING BIM USE

When assessing the risks of employing BIM and developing appropriate contract language for its use, a number of issues unique to modelling should be addressed. 1. What are the purposes for which model(s) will be used?

Determining the end use(s) of virtual modelling is instrumental to assessing project risk, as well as assigning contract rights and responsibilities. BIM can consist of general 3D visualisation depictions or permit multiple, extremely complex design analyses. Modelling can be used as a simple cross-check to detect design conflicts in 2D drawings or it can he used comprehensively as a life-cycle analysis tool that includes reliance on model data before and after the project construction is completed to address ongoing operation, maintenance and environmental sustainability issues. BIM that is intended to be used for fabrication, costing and scheduling purposes will require considerable modelling detail; whereas a model intended solely for production of architectural designs will necessitate quite another, less complex level of completeness. More than merely determining scope of the model and its deliverables, the careful practitioner also will use this inquiry to confirm the level of reliance that can be placed on model data by the parties that use it. Where the model is not highly detailed, provisions for separately confirming quantity take-off from the model and similar considerations should be incorporated into the parties contracts. 2. What is the schedule for deliverables from the model?

As important as scheduling the actual construction itself, it is critical to develop a schedule for model deliverables that will be obtained from the virtual design work. Fabricating and other time-sensitive design analysis activities dependent on early model completion can maximise the cost-saving benefits of this technology provided the parties contract clearly establishes who is supposed to coordinate the various stages of model development and incorporate other data into a main model, as well as when specific design deliverables from the model (and into the model) must be produced, exchanged and reviewed. 3. How and to what extent will data from one model be transferred or incorporated into other models?

At the core of the issue of transferring modelling data between software programs is the reality that virtual modelling software is technologically just emerging from its infancy. Given the current state of the art, one software program may not play nicely with others being used jointly to design a project fully, corrupting or destroying model data in the process. This issue of the interoperability of various modelling software programs meaningfully to share data is one of the greatest current challenges in the use of BIM

technology.8 Concerns flowing from this limitation include the problem of data repurposing, where one software package lacks the ability to read or use certain types of data generated by another software package and so ignores or changes the data when it is read by the second program. Loss or changes of data in round-tripping, or sending design data from one model into another and returning the joined model back to the original software to be read, is a similar significant concern. Until modelling software platforms become more standardised, it will be crucial to place contractual responsibility for interoperability on every party contributing to the design, ensuring that their modelling contributions can be read and interpreted by other modellers involved in the design process. Alternatively, control of the model and transfer of modelling data from other programs into the main model must be strictly regulated to avoid data degradation or loss. Where construction trades are adding to the project model simultaneously with architectural, structural and other designers, traditional design control, ownership and liability will be changed. These are not insurmountable concerns but they must be addressed on a projectspecific basis driven by the model deliverables and which parties have control over the process used to develop them. Given the prospect of significantly greater efficiencies through more fully integrated processes, however, it behoves the industry to maximise such interaction among the various parties that contribute to the modelling process as a whole. 4. How is the modelling process to be managed?

Virtual building requires attention to process, just as is the case with actual construction. Protocols with respect to model access, security, transmission, archiving, transmitting and the like, should be articulated in the parties contracts. Minimum standards with respect to software interoperability, model content, level of detail, formatting conventions and coordinate systems and other such processes, also should be developed. Often the parties will designate a person or party to develop and/or manage the modelling processthe model manager or model masterwhose duties and powers should be articulated in the project contracts as well. 5. What is the level of reliance that can be placed on modelled information?

Reliance on model data is a key issue that cannot be divorced from purpose. A model intended solely for visualisation purposes should not be relied upon for accurate or complete construction material quantity take-off. As a consequence, care should be used to spell out levels of permitted reliance on model data in the parties contracts after the complete purposes for the model have been identified. Given the current level of sophistication of BIM software, from a contract perspective, this reliance issue is really one of articulating what design information will be contained in the model versus 2D detail drawings or other construction documents. Under traditional construction contracting paradigms, the construction trades are required to follow the contract documents, which commonly include 2D drawings and specifications. A basic tenet of American law is that construction trades cannot be held responsible for errors in the work
For an overview of the issues related to interoperability, see BIM Handbook. Ch 3, Interoperability, pp. 6590. The National Building Information Modeling Standard website and its repository of data regarding building SMART initiatives is located at http://wwwfacilityinformationcouncil.org/bim.
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where they properly followed such contract documents. Known as the Spearin doctrine,9 this legal precept serves as a safe harbour for contractors, as it creates an implied warranty of design adequacy in the design documents provided to them by the owner. This doctrine holds, in principle that, if the contractor follows the design provided to it, there will be no liability for performance failures or defects in the built construction arising from the design. In a BIM environment, if tile contract documents do not expressly include the 3D model, and yet the construction trades follow it in constructing the project, will the Spearin doctrine be applicable to protect their reliance? If the contract documents are defined to include both 2D drawings and 3D models, how will the two be coordinated and which can be relied upon to control in the event of conflict? If the contract documents are defined only to include 3D models, what is the consequence of providing 2D drawings to public authorities or contractors for obtaining permits and other purposes? In answering these questions, a careful contract developer will explore whether the 2D drawings are merely a product produced by the BIM model (e.g., a printed section or detail depiction generated from the model) or will they separately illustrate fine details of the project that are not found in the model at all? If the parties are following the models to build the project, at a minimum, these construction models should be identified as part of the contract documents, but the contracts will further need to reflect the interaction depending on the source of the 2D drawings. The push for use of the model as a contract document, binding on the parties to the full extent in the same way as drawings or specifications are currently used, is increasing, as detail that can he illustrated with this technology grows finer. Organisations like the American Institute of Steel Contractors are spearheading this effort for structural steel design10 and it is likely to see reliance on the model as a fully fledged contract document supplanting 2D records as the technology grows in sophistication. 6. Will the model be used after construction is completed?

Some project owners, the United States General Services Administration being the most prominent, believe that BIM can greatly enhance facility management and so, are contractually mandating that they own the completed model so they may use it for ongoing operation of the building through to the end of its life-cycle and decommissioning. This is a significant departure front the current 2D design paradigm where designers own the designs they separately create and license them to the project owner solely to construct one unique project. Particularly where modelling is a collaborative process involving architects, engineers, other design consultants, contractors and manufacturers, the derivative process of adding and/or jointly contributing to a base model as it is developed raises truly formidable model ownership, intellectual property and standard of care questions for which there are few, if any, analogues in the law. Again, the deliverables desired by the project owner for the specific project will drive contract terms regarding model ownership and use.

The United States Supreme Court issued the landmark case of United States v. Spearin, 248 US 132, 39 S Ct 59, 63 1. Ed 166, in 1918, creating the concept of an implied warranty of design adequacy inherent in design documents presented to a contractor under a traditional design-bid-build arrangement. 10 AISC Manual of Steel Practice, Appendix A.

Making the model a deliverable raises a number of other as yet unanswered legal issues as well. What responsibility do model creators have for model data degradation errors that develop over time? Is the completed model a product, subject to the laws that govern goods, such as the doctrines of implied warranty and strict liability? For now, it may be prudent to include contract provisions that provide the equivalent of express warranty obligations and waive or limit obligations implied at law, to ensure desired long-term performance or deliverables from a model. IV. STANDARD CONTRACT APPROACHES TO BIM The design and construction industry is just now developing standard contracting approaches to BIM. In 2007, a group of industry organizations operating under the ConsensusDOCS tradename published an Electronic Communications Protocol Addendum (ConsensusDOCS 200.2). This document is attached as Exhibit 1. This document focuses on a number of the hardware and software issues raised by electronic project communication. It requires the parties to make specific decisions with respect to a variety of protocols governing the creation, transmission and storage of electronic communications. More recently, ConsensusDOCS issued its Building Information Modeling (BIM) Addendum (ConsensusDOCS 301). This document is attached as Exhibit 2. This document is specifically tailored for project modeling. The addendum calls for the parties to develop a BIM execution plan which addresses many of the process and contractual issues implicated by utilizing BIM technology in project delivery. The document also contains provisions addressing allocating responsibility for liability that might arise from modeling. Even more recently, the American Institute of Architects (AIA) issued its Building Information Modeling Protocol Exhibit (Document E202). This document is attached as Exhibit 3. The AIA has taken a different approach than that adopted by ConsensusDOCS. The AIA focuses on the fundamental concern of to what extent can parties rely upon information contained within the various models. Article 4 of the Exhibit addresses the question of reliance. Moreover, the AIAs BIM exhibit contains a detailed Model Element Table that sets forth the level of detail one can expect for each model element at various project stages. The table utilizes the Construction Specifications Institutes (CSI) well-known UniFormat. The particular version of the protocol exhibit attached to the paper utilizes traditional delivery phasing, although the Institute also has prepared an Exhibit utilizing Integrated Project Delivery phasing. V. CHALLENGES IN WORKING WITH BIM TECHNOLOGY

At present, BIM has functional limits that must be taken into consideration when developing contract terms regarding its use. First, the level of detail depicted by current BIM software is not as fine as 2D CAD can produce. Elements with irregular surfaces, such as a wall covered with stucco or field stone, or the surface of a piece of upholstered furniture, present some difficulty in 3D model depictionparticularly when presented on a curved, as opposed to a flat vertical or horizontal, surface. This design tolerance issue is described as the granularity level of the model.11 Where granularity poses a problem for conveying design intent, modellers currently tend to rely on supplementation of the main model with 2D details or
The United States Army Corps of Engineers recently developed Building Information Modeling Requirements Attachment F (v. 1-4-08) (hereafter, USACE BIM Requirements) has set a standard that requires the model to accurately depict any design element that could be drawn in 1/4 scale, i.e., 1/4 = 1 0 US.
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written specifications. Materials take-off front the model also may be compromised, requiring manual confirmation of model quantity calculations to adjust for granularity problems. In addition, the greater the level of access to the models technical data, the greater the challenge to exercise meaningful control over design content and the increase in concern for liability arising from design modification. There are three primary ways a model can be used once its development has begun. First, viewing access can be provided that allows the reviewer the opportunity to fly through or view the various depictions created by the design model without being able to modify it at all. Secondly, design access can be provided to allow an existing model, such as an architectural design model, to be supplemented through design integration of other models, such as structural or mechanical modelling, that augment the total information contained in the model but do not change the underlying base model information. Finally, modelling access may permit totally interactive design, allowing a subsequent modeller, or group of designers from various disciplines working together in a joint session, to modify any aspects of a model, regardless of how they are initially generated. Some modelling software allows for audit trailing, expressly calling out within the intelligent elements of the model the changes to each element over time, including identifying which party made the changes. Where this is not available, contract terms describing the process of design development should assign responsibility for keeping track of design changes to one of the designers. Along with this obligation typically comes a responsibility for design currency, or making sure that all the designers are working with the most up-to-date or complete model as it evolves. Liability concerns about group design charrettes, wherein all principal project stakeholders initiate an intensive collaborative planning process at the beginning of a project (and the reticence of designers to allow others to participate in modifying their model without sharing their design liability obligations), may be ameliorated with new insurance products that furnish augmented versions of traditional valuable papers coverage, along with requiring trade contractors and suppliers to secure contractors professional liability coverage to protect from errors or omissions in their contributions to the model. An additional level of control can be imposed contractually by designating a single party in the design process to add technical data submitted by others into the main project model, controlling both design content and critically evaluating technical data that could create conflicts with existing model before adding it. These interoperability limitations raise yet other interesting risk allocation issues. Seeking redress for software defects is difficult given blanket limitation of liability provisions commonly found in shrink-wrap software agreements. If risk cannot be efficiently transferred to the manufacturer for software coding errors, how will it be addressed? Will a designers professional liability insurance cover design defects caused by errors embedded within modelling software programming? Is a designer negligent if it happens to purchase a defective software product? This inquiry is different from the failure to recognise the inherent interoperability limitations in current software. If it is commonly known that round-tripping utilising certain softwares will result in data degradation, how will liability be apportioned if adequate patching of the software is not custom-created for the project? These and similar issues will continue to concern modelling participants as long as interoperability remains a problem. The National Building Information Modelling Standard (NBIMS) is one group that has made an attempt at setting meaningful industry standards for criteria by which intelligent elements are designed to avoid inter-operability problems. Equally useful are the Industry Foundation Classes (IFCs) developed by the International Alliance for Interoperability (IAI) (see also 8

buildingSMART Alliance).12 These IFCs are object-orientated, open source data formats for many types of information shared in model generation. The BIM Addendum of the United States Army Corps of Engineers, for example, requires utilisation of IFCs as a baseline method of limiting problems arising out of software interoperability hurdles, but further requires design-builders to articulate ill their BIM Plan the process they will use to eliminate interoperability clashes from their design model.13 Careful contract drafting can help to foster interoperability by expressly requiring use of software from vendors willing to conform to IFC and similar industry standards and protocols applicable to the type of construction materials being used on the project. VI. THE FUTURE OF BIM

BIM already does things that 2D design simply cannotclash resolution during design phase is just the beginning of the creative uses of this technology. Just-in-time delivery of prefabricated materials and equipment to the project site based on manufacturing plans generated directly from a BIM model makes it possible for more cost-effective scheduling, reduced storage costs and minimised trade workspace conflicts during construction. The full uses of this technology, however, have barely begun to be explored. There are a variety of design analyses that can be performed on a 3D model that are simply inefficient using 2D methods of design, e.g., daylighting and energy efficiency studies, ergonomic traffic flowing and operation and maintenance planning. Although it is early to detect trends in such uses, it is clear that this technology permits a significantly improved ability to make three-dimensional environmental sustainability analysis of a building prior to construction.14 It is also likely that property owners developing multiple sites will begin to explore portfolio operation and management of their buildings through joining of multiple completed project models. As interoperability and detailing improves, the potential for development of new software modules to check designs for state and local code compliance also is imminent. BIM modelling is undoubtedly a powerful tool. With it come new challenges and the alteration of traditional design and construction relationships. Expect that it will continue to foster new forms of project collaboration and enhance the efficacy of the design and construction process. Expect, too, as a result, that those who prepare contract terms relating to modelling will have to become knowledgeable about this technology to rise to the challenge of creatively addressing contract issues unique to its use.

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The IAI website is located at http://wwwiai-international.org. Their IFC standards represent the first significant, industry-wide effort at compatibility in BIM design platform formats. 13 USACE, BIM Requirements, para. 2.2.3.3. 14 BIM Handbook. Ch 8. The Future: Building with BIM, pp. 285-319.