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Professional Liability Insurance

Current professional liability insurance policies cover the use of BIM in our professional services. Some insurance carriers have suggested that BIM and the clash detection process enhances the ability to coordinate between design disciplines, thus anticipating reduction of the incidence of claims for errors and omissions.  Some professional liability insurance policies include coverage for certain elements of cyber liability emanating from professional services.  Design professionals should review insurance policies carefully with their insurance brokers and determine appropriate coverage for the evolving cyber liability risks. 

Assessing the Risks

Although there is yet no evidence of BIM as a factor in claims and lawsuits, the potential for enhanced risk remains. Accordingly, we will examine some relevant issues.

CONTROLLING THE MODEL

As addressed earlier, managing possession and control of the 3D model is critical for risk management of the integrity and content of the model. Loss of control can lead to unauthorized use of the model. The key to protecting yourself is to maintain strict archive and documentation controls and always be able to prove up the authorship of model revisions with record copies. Properly archived BIM files will allow identification of changes by downstream users thus providing an effective defense should claims arise from misuse.

Additional risks associated with control of the model includes responsibility for maintaining the viability of the model and recognizing the importance of the integrity, confidentiality, and availability of BIM data for the project team. Model viability can be compromised by network failure, power interruption, improper file handling, cyber breach and malicious attack amongst other intentional or unintentional acts.  Since design and project team members will likely be dependent on the consistent availability of the model and its robust data, the party responsible for model control may have significant exposure for delay claims if the BIM data is compromised or unavailable.  Firms should establish strong network security measures and diligent and timely data backup and recovery procedures to minimize the impact of these potential data breach and cyber risks to their BIM and related project files.

DESIGN COORDINATION vs. CONSTRUCTION COORDINATION

When the construction documents were the sole domain of the architect, the capabilities and limitations of the documents were more black and white. However, the growing use of BIM by contractors is causing the difference between the architect’s coordination of design and the contractor’s coordination of construction to be increasingly difficult to differentiate. When control of the BIM model is shared with the contractor, expectations of what the data is intended to accomplish fall into more of a grey area.

The contractor, who must work out each minute detail before the work can be constructed, may unreasonably expect the design professional’s model to contain details developed far beyond what was done with 2D CAD or manual drafting as required to express the design intent. Such unrealized expectations can lead to claims of incomplete or inaccurate documents. This places more importance on properly adapted AIA digital practice documents clarifying the architect’s scope of services and effective management of expectations. BIM model detail and the degree of completion should be well documented and regularly clarified from the onset of the project.

CONSTRUCTION TOLERANCE CLAIMS

A potential result of the greater detail and scaling that is inherent in the BIM model are claims that construction tolerances should have been considered and more effectively accommodated. Again, the best antidote for failed expectations is clarity defined in the digital practice documents and ongoing discussions with the project team as the project evolves.

BIM SHOP DRAWINGS

Under typically current industry practices, the design professional’s construction drawings are brought into constructible focus by the contractor’s shop drawings. Since the BIM model is typically less complete than detailed submittals, the more widespread use of the BIM model for shop drawings by the contractor could give rise to claims of adaptation difficulty or un-usability. This reinforces the need for a well drafted digital licensing agreement with a completed Model Element Table. With the advent of vendors providing “shop drawing quality” details for the design professional to paste into the model, expectations and scrutiny become more acute. It is safe to predict that contractors will increasingly want more from the BIM model in terms of detail, and architects must be aware of this when they explain and define the scope of their basic services.

OLDER FORM AGREEMENTS

Our practice is changing at a more rapid pace than ever before, and older versions of standard form agreements are becoming “old technology” about as fast as our old computer did. Risks can be higher when these older agreements are used for digital practice, and careful modifications must be made to include the appropriate conditions and safeguards. The best recourse is to use the most current (2007 or later) AIA owner-architect agreements along with the 2013 AIA digital documents.

THE STANDARD OF CARE

Since the standard of care as defined by the AIA is, “…services consistent with that level of skill and care ordinarily provided by architects practicing under the same or similar circumstances,” there is concern that the technical advances and practice advantages of BIM may ultimately impose a higher standard of care as its usage becomes more widespread.

For example, a BIM non-user may be confronted in a lawsuit by a plaintiff’s expert witness who maintains that the problems at issue could and would have been avoided with the use of BIM and its technical tools such as clash detection. Only time will tell if the standard of care evolves in this direction, and BIM non-users may someday have to consider having the owner formally agree to their approach to services delivery. Another concern is that the variations in the specified level of information among BIM projects may cause the standard of care to become a “moving target” that could be difficult to assess.

INTEGRATED PROJECT DELIVERY

The most complex use of the BIM model occurs with Integrated Project Delivery. While this topic is beyond the subject matter discussed in this paper, IPD is the frontier of our practice, and it provides a glimpse of the new horizons rapidly moving within the evolutionary reach of current standard practice.


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