By Ivan Sarkissian

Building information modeling, or BIM, has been a part of the design and construction landscape for the better part of 20 years.

As global urbanization continues to increase rapidly, the architectural, engineering and construction industry are proceeding to utilize BIM or adopt the software into their construction projects. In 2020, the BIM market value was at $5.4 billion and is on track to reach $10.7 billion with an expected increase at a compound annual growth rate of 12.5% by 2026.

Generally speaking, BIM relies on 3D software that is used by architectural, engineering and construction professionals to help identify and gain insights into scheduling, planning, designing, constructing and managing buildings and their supporting infrastructure. While the software was originally developed in the 1970s and 1980s, it has seen a major uptick in usage over the past few years.

The benefits of incorporating this software are vast. From assessing a project to utilizing the information, it helps to efficiently manage and implement the project at hand while increasing overall productivity and quality. BIM has the ability to model details of a building, which helps stakeholders anticipate planning, coordination and sequencing issues prior to beginning construction.

As the architectural, engineering and construction industry, and world as a whole, continue to navigate the new workforce structure that evolved from the COVID-19 pandemic, the capacity and resources BIM offers ensures it’s here to stay.

Companies and contractors must be aware of the potential legal issues prior to beginning a new project, and keep in mind these risks throughout the duration.

Assess Potential Risks and Stick to the Scope of Work

While the benefits to using the software in a project are easy to see, they also shift some risk to contractors and trade contractors. In contracts that are not design-build, the construction side of a project is generally entitled to rely on the adequacy of plans and specifications provided by the project owner.

While a contractor may have a general responsibility to review contract documents for obvious mistakes, the risk of mistakes in plans and specifications generally remains with the owner and/or the owner’s designers.

When aspects of design are assigned to the contractor, they are typically called out in the contract documents allowing the contractor and trade contractors to fairly incorporate them into their risk structure. These are both true as it pertains to project schedule impacts, constructability and warrantability.

To the extent that BIM responsibilities are assigned to the contractor or trade contractor, lines between the contractor and the owner/design team may become blurred. For example, BIM software may be relied upon to detect conflicts in design work performed by different design disciplines, e.g., structural and mechanical.

When conflict detection is assigned through BIM, an undetected conflict that manifests during construction could raise difficult questions as it relates to responsibility for schedule impacts and/or cost to correct. Even where the problem originated with an error in the design, assignment of BIM and the arguable failure to properly perform BIM analysis could direct liability to the contractor.

Moreover, in many instances, BIM relies in part on contractor-supplied information and becomes a focal point for implementation of design. Should inaccurate or incomplete information be inputted into BIM, the contractor or trades could become embroiled in a dispute that might otherwise have been within the province of the owner’s design team.

As always, the first step in managing risk associated with BIM starts with careful attention to contract drafting. If BIM responsibility is included within the contractor’s scope of work, the scope of the BIM work, sources of information, review of the output and ultimate responsibility for the product must be addressed.

As always, when considering contract language, the review must for look for risks the contractor can control and those it cannot. Risks that are associated with the errors in design should be contracted to remain with the owner and their discovery.

Additionally, contractors need to be meticulous and mindful of the scope of work with the intent that the obligation to review plans in connection with BIM should not shift responsibility for design errors to the contractor. Likewise, where a contractor is charged with incorporating trade information into a BIM model, appropriate language should be included that transfers the risk of inaccurate information to them.

Master the Project’s Contractual Documentation

Contractual issues on construction projects are one of the main risk factors when it comes to BIM. Not only does it make shared responsibility a bit ambiguous, it can also confuse ownership and authority when it comes to reviewing contractual documents.

When a team member who does not possess ownership of the model is appointed to review documents or contribute data to a project, the responsibilities can require a contractor to review and analyze design documents, which places this new responsibility on them to identify any conflicts or issues.

While this is often contractually out of scope, this also presents an opportunity for the contractor to be involved in the design process. When that happens, it is common for legal arguments to arise over responsibility, therein the liability of design content, which leads to more risk. It remains critical to stick to the scope of work and thoroughly absorb all contractual documents of the project.

Outline Responsibilities and Understand the Risk of Changes

The more a project changes, the higher the risk. It’s just that simple. As designers make changes to design documents, regardless of the reason, the contractor’s BIM responsibilities have the potential to continue or expand throughout the course of the project.

The concern for the contractor is compounded because they do not have a contractual relationship with the designer. The absence of this relationship makes it impossible to direct the designer on the timing by which they will receive a complete set of design documents, again bringing additional challenges and potential disputes to the project.

Evolve With Building Information Modeling

North America is expected to account for the largest share of the global BIM market, which is a clear indication that the use of the software will only continue to increase, which is exciting but still presents its challenges.

As the software continues to be in high-demand and its use continues to grow, the likelihood for additional legal issues and challenges will arise. It is crucial that professionals in the architectural, engineering and construction industry are aware of the risks and prepared to find solutions.

Assessing all potential risks before the project begins, keeping clear and effective communication and continuing to adjust throughout the project, are ways that professionals can avoid potential legal issues, while enhancing the production and progression of the project.