In its most basic form, building information modeling (BIM) is the move from analog to digital design and construction. It is a model-based technology linked with a database of project information. It is poised to fundamentally change the way projects are built and the way the project stakeholders communicate with each other. And while BIM is the vehicle that will lead the design and construction process into an integrated project delivery paradigm, it poses inherent risks.
In recent years, Schinnerer has seen an increased use of project collaboration systems that foster interaction among team members. Over the last decade, firms have migrated to electronic drafting, view coordination, document generation, and schedule creation. These changes, however, are minor compared to the coming age of BIM and integrated project delivery. The move to an integrated, parametric, and object-based system should lead to dramatic changes in design and construction, and, possibly, compensation and risk allocation for the parties involved in a fundamentally altered project delivery system.
BIM is a Tool for Integrating the Design Process
Radically transforming the way designs are created, communicated, and constructed, BIM is not just the electronic transfer of paper documents. It greatly increases the ability to control and manipulate data and information in an unprecedented way and in an interoperable format. The move from paper-centric information to parametric, model-based information means that the digital design can be used for cost estimations, simulations, scheduling, energy analysis, structural design, GIS integration, fabrication, erection, and facilities management.
Building models embedded with detailed information about a construction project are far beyond the capabilities of most design firms at present. These models are not just the electronic drafting tools that firms now think of as digital practice, nor are they three-dimensional renderings with separate construction documents.
Increasing Value Through Shared Information
The result of the design process is not just a creation of the design. A building information model is a repository for digital, three-dimensional information and data generated by the design process and simulations—it’s the design, fabrication information, erection instructions, and project management logistics in one database. The data model will exist for the life of a building and can be used to manage the client’s asset.
Since the true benefit of BIM is to the project owner, the push to use BIM will most likely be a client-driven development. The value is in the significant building efficiencies and initial cost savings, and extends to the operations and maintenance of the facility. Based on expert studies, other benefits of BIM include reduced risks, improved productivity, streamlined production, maintenance of design intent, and facilitation of quality control through clear communication and sophisticated analytical tools.
Taking Charge of the Process
It probably is reasonable that professional service firms should be in control of the information source. As integration of design and construction develops, protecting public health, safety, and welfare becomes more critical. The rationale for having a licensed professional in charge makes increasing sense. The professions, however, must become true team leaders. And their skill sets must include the capability of monitoring and guiding the inevitable “looping” of design and construction features so that there is conformance with the intent, design constraints, and requirements of the design.
BIM May Reduce Claims from Design Errors and Omissions
BIM will allow design firms to focus more on design and less on drafting. All aspects of a project are driven from a unified information source through software that continuously updates the relational database regarding the elements of a structure and their interaction. This means that changes can be made quickly. But the software can also inappropriately replace the need for professional judgment by forcing the model to redesign itself based on preset rules intrinsic in the design elements.
Currently throughout the design and construction process there are redundant efforts—the need for redrafting will lessen as the centralized model becomes broadly accessible. Use of the shared information with automatic conflict and code checking will increase the internal consistency and compliance of designs. The identification and resolution of conflicts should take place immediately, and BIM should reduce the unintended consequences of design decisions.
Shared Information May Not Mean Shared Risks
This tremendous opportunity for design firms to focus on design and for other entities to rely on and share in the design process does not come without risks. Information coming from many sources results in difficulty identifying responsibility. Therefore, it is likely that by coordinating the model and access to the model, design firms are assuming significant risks. Professional services should be priced to reflect that exposure. Billing procedures should recognize risk and value; higher front-end fees are one option.
With the electronic sharing of information, the ability of contractors to claim detrimental reliance on the design has increased. Case law seems to be moving from the Spearin doctrine in which the client provides an implied warranty of the suitability of the documents for construction but the design firm only has to meet a professional standard of care. Now, a new paradigm seems to be allowing contractors to claim they are intended beneficiaries of the design information and therefore have an absolute right to rely on its accuracy. Much of this trend is tied to the use of electronic information, and BIM may accelerate this trend.
Design firms may end up with new exposures to contractor claims as well as vicarious liability because of their assumed “responsible charge” of the design elements provided by independent consultants and unlicensed designers, such as specialty subcontractors and manufacturers.
Client Expectations May Lead to Increased Exposures
Design firms that seize the opportunity to use BIM to aid communication and visualization also may mismanage client expectations. Continuously modified designs and three-dimensional representations may lead clients to expect a perfect design. The speed with which the design can change also may lead to situations where the information provided to and approved by the client is not the information that guides the construction process.
Consider These Unresolved Issues with BIM
As we move from technological innovations to an entirely new project delivery system, there are a lot of unknowns. Professionals should look at how BIM could alter their professions and impact the structure and operations—indeed the very existence—of their professional service firms.
There are significant issues including:
- Definition of professional services and the design process
- Ownership and control of the digital information
- Regulation or control of revisions to modeling information
- Conformity of completed construction to the model
- Relationships of the various parties with concurrent design and construction authority
- Risk that goes with any investment by the stakeholders
- Payment for the creative efforts, control of information, and assumed or assigned risks.
Professional liability exposures seem to be only one small part of the whole definition of design and construction completed using building information modeling. This will be a rapidly evolving issue as BIM leads to an even more complex phase of design, construction, and operation.
Definition of Design and Designers
For the protection of public health and safety, it seems essential that a licensed design professional always be in charge of the creation and modification of the data that forms a digital model. However, that is not presently required and perhaps may not be the final outcome. Design elements are increasingly delegated to unregulated parties such as contractors, fabricators, and manufacturers. With BIM, parties supplying design information are not, by contract, under the responsible charge of a prime design professional. BIM may lead to increased decision making not by design firms using professional judgment, but rather by construction entities or by a computer program working on preset rules created by independent organizations not subject to registration laws.
The ownership of the intellectual property generated in the BIM process has not been addressed. In the shared design philosophy intrinsic in BIM, there are layers of intellectual property provided by design participants that are incorporated into the final model. There may be inadvertent sharing of proprietary information, trade secrets, or patented processes. Confidentiality as well as ownership rights may be compromised.
Control of Information
Provisions used by design firms that treat electronic data as inferior representations of controlling “hard copies” no longer make sense. The idea of obtaining waivers or limitations of liability to control allegations of detrimental reliance is counter to the BIM process. Disclaimers may be ineffective since reliance is implicit. With BIM, there must be a free exchange of data and the ability to rely on such data when incorporated into the final model. Harm can still occur, however, and whichever party is seen as controlling the information may be seen as the source of the harm. If the model becomes a tool to assist the client in operating or modifying the facility, the question of the rights of the client to use all the information in an unregulated way becomes paramount.
Many of the basic roles and responsibilities on a project change under BIM. Existing contractual relationships must change as BIM leads to integrated practice. While professional liability insurance does not hinder a collaborative BIM environment, industry standard agreements appear to do so. Current contractual forms clearly separate, define, and allocate responsibilities and risks among contracting parties. These agreements are based on a legal system that differentiates between design, as a professional service, and construction work, as a contractual and warranty obligation.
Contracts that establish a consensus allocation of risks and provide a framework for practice will take time to develop. With integrated practice focused on the use of a building information model by a collaborative team, the ability to rely on the information contained in the database is pivotal. Without agreements on the sharing of information and the ability to rely on the shared database, integrated practice founders. As integrated practice evolves, contracts, too, will need to evolve to recognize allocated and shared responsibility for the generation of design information, authorize justifiable reliance on the information, assign the duty of updating and archiving the database, and provide compensation for the services, risks, efficiencies, and savings created. It will be years after that when contractual rights and responsibilities are construed by our legal system.
Legal and Insurance Concerns
The law cannot keep pace with technological advances. Presently, design firms, contractors, clients, and insurers have a shared understanding of where the responsibility of one party ends and that of another begins. “Bright line” separations are helpful in determining liability. Since insurance tracks legal liability, it too is dependent on a clear separation of responsibility and, therefore, liability. The idea of parametric modeling as the design and construction database is a difficult one to examine from practice and insurance coverage perspectives. Firms will have increasing challenges as they realize that they are moving from a physical model, and hard copy plans and specifications, to the primary information generators for a digital database.
As firms move from an analog system, where original source material is relative easy to identify and control, through our present “semi-integrated” system, to what could be called the “super-integrated” future, those firms will have to deal with new business rules and possibly unknown liability exposures.
A collaborative system presents legal ambiguities. Without a clear delineation of responsibility, insurers will be hesitant to assume such imprecise exposures.
Victor O. Schinnerer & Company, Inc. and CNA work with the AIA Trust to offer AIA members quality risk management coverage through the AIA Trust Professional Liability Insurance Program and Business Owners Program to address the challenges that architects face today and in the future. Detailed information about both these programs may be found on the AIA Trust website, www.TheAIATrust.com.