Did Someone Say Lawsuits?

There are always legal concerns with the line between design and construction blurring with the adoption of BIM. With that said, currently there are only a handful of lawsuits related to BIM. These suits range from late delivery of the model to lack of communication of the project team. The later has the greatest legal implications where the team foregoes procedures that have worked for years to rely solely on the false belief that the instantaneous transfer of information will correct issues automatically.

The other legal concern with BIM is that even though it has been in implementation for over ten years it is a new frontier in the industry that until guidelines and benchmarks are established, preferably by government agencies, there will always be some risk associated with BIM. There is a definite need for protection to avoid becoming the target of a lawsuit and the general liability insurance should include some sort of rider to mitigate the new blurring of roles for the contractor. I do feel that the use of BIM will actually help to reduce the insurance premiums with demonstration of how BIM helps the firm to deliver higher quality projects while mitigating safety concerns and risk.

Contractually, several items need to be considered from the implementation of a BIM Management Plan, its constant updating tied to the contract, and the collaborative partnering of the firms in the project. Some contract amendments should be made earlier, rather than using standard forms of contracts and some subcontractors should be retained earlier in the process. The Consensus Docs 301 really handles the legal and contractual items well in conjunction with a proper BIM Management Plan tied to the contracts. It covers model hand-off, model quality, risk of loss, licensing of models, and it defines acceptable model use among other topics. These items are often looked over and left out of contracts putting contractors at risk.

The risks are numerous in any frontier yet the rewards for those who make the calculated risk are also numerous.  BIM does not eliminate failure and that risk is always a reality. Complacency with the models provided can cause major errors to occur in the project. Trying to come up with new ways to solve old problems is never going to work perfectly.

Even if the solution is good it does not mean integration will be effective. Sometimes solutions don’t take with a group even though they solve the problem. For example a Pre-Construction group makes the change to Autodesk QTO for their quantity take-off needs. Yet the group does not feel comfortable using the software or does not have confidence in the models; the software and the process did not fail but the group was not ready to move in the direction of model based take-off. This can be a risk if implementation is pushed too fast.

The BIM gap, where project members and firms see BIM as something completely separate from their core job function is one of these risk. This gap is the most serious issue facing any firm and a successful full implementation of BIM. As you can probably tell this is something we at Epic BIM feel strongly about.

There will always be lawsuits and BIM will not eliminate lawsuits and claims; it hopefully will reduce them, but never eliminate them. The key is to have the right protection in place sort of like having a raincoat when you need it.

8 Comments

  1. Marek I'll say this nicely, NO. You are the first and only person to complain about the background out of the over 5,000 visitors we have had since starting. I do not see the background as an issue at this point. One complaint in 5,000 isn't bad and we do not pander to the whimsical fancy of one reader. While others comment to the content in their comments, whether here or on Linked In, you sir have thrown a fit that any toddler would be ashamed of. I would normally chalk your comment up to a bad day however, you have been at this tirade for going on three days at this point between Linked In and now here. With that said if I valued your opinion I would consider your comment an insult.

  2. can you please change the background!

  3. I believe one of the problems with BIM use is the assumption that BIM information provided by others will be suited for your particular purposes.
    The CAD problems from the 80s eluded to by Douglas above were overcome because CAD files where (and still are) provided 'as is', with all risk to receiving party. This avoids a legal responsibility problem, and also adds a good QA step. The receiver is obliged to check what they receive is adequate for their purposes.
    But in BIM guides we see words like "suitable for …".
    We are being expected to step out of our area of expertise and provide information suitable for areas we have no or little expertise in.
    An architect models to suit their purposes, the purposes they are expert at. To expect what they produce to also be suitable for quantity take off, without checking by experts in estimating, is a legal minefield, and in practical terms delusional.
    There needs to be recognition that BIM information provided by others is only a start, a resource, that still requires due diligence and more likely than not modification to be useful.
    I see a big future for expert witnesses!

  4. Good topic, John!

    James, I agree with you that it's often used as a distraction. Interesting commentary on your legal consulting. Thanks.

  5. The "legal risks" associated with BIM are nothing more than red herrings drawn across the trail by lawyers, insurance agents and others who are unprepared to advise their clients on the substantive issues.

    The REAL risk to planners, designers, contractors and others who deliver services to the built industry is NOT using BIM. BIM is emerging as the new standard of care. As the laggards in the legal and insurance industries clue into that fact more and more built industry professionals will be sued for NOT using BIM.

    I've been hired as a consultant by several different law firms now to tee up the experts needed to prove complex construction claims. In each instance "Forensic BIM" has played a huge role and the next logical step is to start suing built industry professionals – note the risk is not limited to designers – for NOT using BIM.

    James

  6. While a good BIM implementation plan is essential, we are not seeing any insurmountable legal risks in using this new tool. Recall that similar concerns were expressed when structural engineers started using computers in the 70's and 80's, and when CADD software was introduced to the design process in the 80's and thereafter. BIM is just another tool. It will be refined over time, but it's we users who must adapt to its strengths and limitations over the near term.

    The beauty of our common law legal system is its flexibility; it will adapt established precedents to new fact patterns so that users' expectations for certainty in their legal rights and duties are maintained. The standard of care, as well as contract law, are adjusting to BIM and IPD teams as factors in design and construction. We have embraced both in our construction law practice for design professionals and contractors.

  7. It certainly throws a wrench in IPD projects. But using contract documents like Consensus Docs 301 should take care of most peoples issues.

  8. Interestingly this topic came up in a conversation I had this morning. The risk is that legal issues will hinder the collaborative nature of BIM.

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