BIM Legal Liabilities: Not That Different

For this week’s Guest Post Friday here at Musings, we welcome Scott P. Fitzsimmons.  Scott is an attorney with the construction law firm Watt, Tieder, Hoffar & Fitzgerald, where he represents contractors, subcontractors, owners, and engineers.  He is also a LEED AP and an instructor for AGC of D.C., where he teaches BIM Contract Negotiation and Risk Allocation as part of AGC’s Certificate of Management, Building Information Modeling program.

When a new technology is introduced to the construction industry, contractors inevitably ask themselves one question “Great, how can this new gadget get me into trouble?”  Building Information Modeling (BIM) is exactly the kind of technology that raises this fear.  But, BIM has been around for a few years now, and the construction industry has done a good job of curtailing the fear of unanticipated legal liability.  Nevertheless, contractors should be aware of the pitfalls BIM introduces and should know how to limit their risk arising from this new “gadget.”

Often described as “CAD on Steroids,” BIM is truly much more than a simple design program.  Along with early clash detection, BIM provides time and cost integration; calculates energy efficiency; and assists building maintenance long after project completion.  Unlike CAD, BIM also modifies the collaborative nature of a construction project.  Thus, subcontractors no longer review a design, submit shop drawings, and go to work. Rather, subcontractors are brought into the design process early in the project and often are asked to contribute to the design long before construction begins.

Asking a contractor or subcontractor to provide design services appears to shift the roles of an architect and a contractor.  So, the questions abound: Is a contractor now responsible for design? Can the contractor be held responsible for defective design?  Do not fret.  To date, there has been only one advertised case addressing BIM liability.  The reason is simple.  For almost a hundred years, the United States Supreme Court has held that contractors are not responsible for defective design on a traditional design-bid-build project.  Using BIM, therefore, should not modify a contractor’s responsibility.  But, to ensure that your obligations do not extend beyond construction, all BIM requirements should be in writing and made part of your contract.

Luckily, as explianed eloquently on netlawnman.co.uk, the construction industry has created several BIM Addenda that can be easily incorporated into your contract to identify your BIM obligations.  The most widely used BIM Addenda are the ConsensusDocs 301 document and the AIA E-202.  These documents, especially ConsensusDocs 301, were created through input from all aspects of the construction industry including contractors, engineers, insurance companies, owners, and trade organizations such as AGC and ABC.  Thus, they represent a collaboration of efforts to distribute legal risk appropriately on a BIM project.

Although each document controls BIM responsibilities differently, the objective is the same.  A contractor should not assume design responsibility simply because a project uses BIM.  Thus, the ConsensusDocs 301 Addendum clearly states that nothing in the Addendum relieves the Architect “as the person responsible for and in charge of the design of the Project.”  Similarly, the AIA E-202 Addendum places model management responsibility on the Architect. Be aware, however, that a contractor may be responsible for any contribution he makes to a BIM model.  It is in this grey area that trouble may lurk.  With a properly drafted BIM addendum, however, the responsibilities between architect and contractor should be clearly distinguished.

Overall, the purpose of a BIM Addendum is to maintain the status quo.  Architects are responsible for design and contractors are responsible for construction.  Should you encounter potential liabilities on a BIM project, or need assistance drafting a BIM Addendum, please consult an experienced Virginia construction attorney.  Doing so before and during construction can help limit your potential liabilities on a BIM project.

Scott and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.