New Processes, Tools, & Technologies:

New and innovative technologies, tools, and processes represent the next step in defining and managing the standard of care relative to innovation. While these are often new and proprietary to a particular provider such that the requisite combination of reliance and validation should be well thought out, they go further into the standard of care by actually becoming a part of how the design professional provides its service.

Design professionals have clearly been the beneficiaries of technological advances in the tools of their trade. The evolution from the slide rule to the calculator to computer modeling to CADD have all helped design professionals provide their services faster, better, and less expensively. As new tools and processes for design delivery are presented, design professionals face an inherent trade off between opportunity and risk. The opportunity to be, and to be perceived as, “cutting edge” and to provide services better and less expensively is obvious. The risks are less obvious:

  • The first has to do with transition costs associated with moving the practice to the new tool and process, in comparison to the actual benefits attained and the staying power of the technology. For example, CADD has obviously established its staying power in the industry over the last quarter century, and has truly become the way practice gets done. By contrast, project websites and extranets, which were touted to be the wave of the future for all projects, have generally failed to become central and transformative in the industry.
  • The second has to do with timing. Move to a new technology too early and a design professional may be plagued by defects and interoperability issues without significant recourse. [16] This clearly implicates the reliability of the provider, as well as the capacity of the professional to externally validate the technology and its output. Alternatively, if the design professional moves to the technology too late, the design professional may be deemed to be behind the curve of the “ordinary” professional and thereby below the standard of care.

As a generic rule for purposes of applying the professional standard of care to a new technology or process, the key is to embrace the available processes and technology no later than when they become “ordinary”, but to retain and continue to apply the professional skill and judgment consistent with the training and licensing. The “tipping point” for these purposes is seldom a bright line, but may most easily be tied to some perspective that the technology or process is used more often than not under similar circumstances. At the same time, even when a tool of technology becomes part of common usage, it is imperative that the design professional continue to apply its experience, skill, and knowledge to verify and validate the output data. As a classic example, many structural engineers have been criticized for virtually blind reliance on structural design calculation programs without also applying the scrutiny and validation of their own professional learning and experience. Similar criticisms have arisen through the use of software provided by proprietary product manufacturers. In many ways, technology and processes which streamline the design process through actions occurring on microchips require more, not less, professional understanding, judgment, and insight.

The latest and greatest trends or demands with respect to the design process and innovative technology are unquestionably BIM and the related, but even more varied concept of “IPD”. As a starting point, it is important to distinguish and identify three categories of the trends and demands:

  1. BIM: A technology.
  2. IPD: A process.
  3. Alliance/Lean/Collaborative Contracting: An economic relationship

As the industry has addressed the issues, BIM has been treated as a separate and distinct concept which is then commonly implemented as a key component of the often-blended concepts of IPD and alliance contract models.

Building Information Modeling

While the press is filled with reports of the rapid expansion of BIM usage by design professionals, contractors, and others, BIM has certainly not reached the tipping point of “ordinary” for purposes of the standard of care. Even the heaviest BIM users in 2008 generally used BIM on only 30-35% of their projects. [17] The AIA B101 from 2007 seems to make the non-prevalent application of BIM clear by making both Building Information Modeling and “preparing digital data for transmission” solely and exclusively additional services outside the scope of the Agreement. [18] Yet if current trends continue, BIM will become “ordinary” in some circumstances, and thereby dramatically redefine the tolerances of the standard of care in at least those specific settings. [19] At this point, such projects will likely be focused on heavy MEP-based projects such as healthcare and industrial/manufacturing, as well as repetitive design models such box stores and hospitality.

There is disagreement as to whether there have been claims against design professionals based upon the usage of BIM. However, many experts and publications claim: “It’s only a matter of time.” When they do, some predict that design professionals and their contracts and practices will be ill-equipped to deal with them:

. . . until new risk management techniques have been worked out and new contract language has been developed to allocate more of the risk to the project owner and other parties instead of leaving all the risk with the design firms, BIM poses a serious new risk to design firms and the insurance carriers that insure them. [20]

To a great extent, such foreboding and worry comes from lack of clear boundaries of the design professional’s responsibility and standard of care, as BIM initially evolved as a software model most aggressively “endorsed” by project owners and contractors. The attraction to and adoption of BIM by the design community has been varied and sometimes hesitant. In part, the perceived reluctance has been based on the reality that BIM-based designs can and do incorporate information from outside sources (e.g., manufacturers, vendors, and contractors) as a part of the multi-dimensional model. Restricted to its simplest application as a tool of the design team alone, BIM should not create such concerns for external responsibility, and the product should be a better design product. Where there is earlier input and contribution to the model by others, it is really little different than traditional issues associated with design-build elements, submittals, and substitution requests. In those situations, good risk management practices both establish the design professional’s right to reasonable reliance and appropriately allocate ultimate responsibility to the proponent. Ideally, BIM-based projects or documentation will make this clear, but even where they do not, extension of these long-held principles may be the basis for containing the BIM-based standard of care for design professionals.

As a starting point, architects must contend with and manage potentially inflated client and public expectations for the promises of BIM. Without question, BIM offers and boasts a qualitative capacity to improve both design and construction, which is more dramatic and transformative that any technological innovation of the past. Most prior innovations in process and technology simply allowed design professionals to work faster and more easily. BIM proponents claim:

BIM utilizes cutting-edge digital technology to establish a computable representation of all the physical and functional characteristics of a facility and its related project/life-cycle information, and is intended to be a repository of information for the facility owner/operator to use and maintain throughout the life cycle of a facility. [21] (Emphasis added.)

By itself, this is a grandiose statement with both immediate and long-term implications. It promises a comprehensive compilation of information with intended uses running for the entire existence of the completed facility.

However, the real threat for purposes of the standard of care today is the promised improvements in the quality of the design and the corresponding benefits to the construction process, schedule, and expenses. For example, one industry advisor has unequivocally proclaimed:

With BIM providing better coordination and detection of conflicts in structures and systems, design firms can avoid many of the construction document problems that lead to delays and change orders during construction. Even on a traditional design-bid-build project, increased communication and collaboration, more efficient fabrication and delivery time, and improved documentation can reduce the overall liability exposure of the project participants. [22]

Such declarations of having used BIM as a solution to some of the most common and expensive design errors and omissions are fertile ground for an owner or contractor impacted by expensive Change Orders, delays, and cost overruns. To those design professionals who do not even use BIM, they will say that with $10,000 and some training, all of these woes and damages could have been avoided. For those design professionals who apply BIM resources to some, but not all, projects, the scenario will be even worse. Their work will be held up against other “similarly situated professionals” who have BIM capabilities, and even against their own work on other projects where BIM was used.

As a result, many experts, claimants, and industry pundits have and will declare that BIM has already changed the standard of care. Yet that cannot really be true, because BIM is not “ordinary”. Economies of scale, technology investments, compatibility with project participants, and reasonable returns on effort maintain BIM as the exception rather than the rule. In fact, for some project types and locations, it may always be the exception. Nevertheless, the potential criticism based on the missed or ignored opportunity for a better design product will always remain significantly appealing to juries, judges, and arbitrators. It has become common in such claims for claimant experts to actually model the project using BIM and to visually demonstrate the multitude of issues which could have been avoided in advance.

Given the potential “after-the-fact” allegations and the reality that BIM is not now the “standard” for all projects, the starting point for application of the PCAD practice model to BIM should likely be a presumption that BIM will not be used for the project. However, such a presumption will have value only if affirmatively shared with the client. As a result, the issue should be discussed with the client and documented as a part of the project expectations in the Agreement. The AIA B101 has accomplished an implied form of this disclosure and confirmation by expressly making BIM and digital information “Additional Services” and, therefore, not a reasonable expectation. Even better would be a provision which expressly identified the hard-copy instruments of service as the project deliverable, and which eliminated any client expectation in the electronic design models for the project. Such a clause might provide:

Hard copies of the construction documents carrying Consultant’s professional stamp shall represent the instruments of service and deliverable under this project. All other copies (printed or electronic) are for convenience only and shall not be relied on for any purpose. The use of any electronic drafting programs or other software in the preparation of the instruments of service is at Consultant’s sole option for its own benefit and is not intended to create any rights or expectations on the part of Client.

The combination of utilizing such a provision, with the AIA model expressly making BIM an additional service, should eliminate any reasonable expectation or claim that the client was entitled to the benefits of a BIM study.

Where BIM is used on a project, it is equally important to document the key assumptions, expectations, and procedures. The reality is that there is no single controlling definition or standard for BIM, and the potential applications and uses are even more varied. The key would be to document the mutual expectations and future uses. Above all, it is important to reasonably temper client and contractor expectations by making clear that:

  • BIM by itself is only a technology and does not equate to Integrated Project Delivery, which embodies another level of procedure.
  • BIM is neither perfect nor a warranty of perfection. The client must understand there will still be conflicts, ambiguities, unforeseen conditions, and/or changes such that they must expect and establish reasonable contingencies for both cost and schedule.
  • Participants in the BIM model must be identified along with their roles, contributions, and rights of access, modification, and use. This process becomes dramatically more complicated as the circle of participants expands beyond the design professionals.
  • Responsibilities must be established. Most often, this will focus on a single entity responsible for the model or a collaboration with each contributor responsible for its content, along with a process and schedule for input and validation.

For these purposes, architects will be well served to use the Building Information Modeling Protocol set forth in the AIA E202 as a starting point for both planning and contracting. [23] First and foremost, the E202 provides a realistic and limited definition of BIM which provides simply:

A Building Information Model is a digital representation of the physical and functional characteristics of the Project. [24]

This definition avoids both any promise of being completely comprehensive and an open-ended expectation running for the entire lifespan of the structure. The E202 then provides an even more valuable recognition that there are many “levels” of BIM with many possible areas of potential uses. Specifically, the E202 defines no less than five separate “levels of development” [25] as a demonstration that there is a wide spectrum of potential definitions to BIM and then specifically identifies the authorized uses with specific focus on:

  1. Analysis.
  2. Cost Estimating.
  3. Schedule.
  4. Construction.

While a specific level of development may not be precisely applicable for a particular project, the E202 provides a good checklist of the range of options which may be expressly modified to the particular needs of the project.

The E202 provides three other components which are critical to the successful identification and management of the BIM process.

  1. The E202 breaks the Model into “Model Elements” which it defines as “a portion of the Building Information Model representing a component system or assembly within a building or building site.” [26]
  2. The E202 then goes on to say that “Model Element Authors” are both responsible for that element and retain all ownership rights in that element except as necessary for the design and construction of the particular project. [27] There are no ongoing rights or duties.
  3. Finally, the E202 establishes a protocol for coordination of and reliance on elements set forth in the Model as it is developed. [28]

With these expectations and procedures in place and documented, architects are well positioned to both successfully manage a BIM based project and to modify the process as necessary.

Integrated Project Delivery & Alliance Contracting

Perhaps no evolution in the design and construction industry has received more attention, commentary, and contractual “recommendations” in the last five years than the area of Integrated Project Delivery, or “IPD”. Publicly, IPD has been extolled as the transformational reorientation of the construction industry with the potential for superlative outcomes and relationships. The AIA/AIACC has been at the forefront of extolling these virtues by defining IPD as:

A project delivery approach that integrates people, systems, business structures, and practices into a process that collaboratively harnesses the talents and insights of all participants to optimize project results, increase value to the owner, reduce waste, and maximize efficiency through all phases of design, fabrication, and construction. [29]

The AIA/AIACC Guide then goes on to premise IPD on nine principles, [30] including virtues such as:

  1. Mutual Respect and Trust.
  2. Collaborative Innovation and Decision Making.
  3. Open Communication.
  4. Organization and Leadership

The remaining five principles then blend a mix of procedural and organizational models with economic incentives, commitments, and protections. Those principles are:

  1. Mutual Benefit and Reward.
  2. Early Involvement of Key Participants.
  3. Early Goal Definition.
  4. Intensified Planning.
  5. Appropriate Technology

Functionally, IPD does not require all of the harmonious aspirations set forth above. Reduced to its common functional elements, IPD is and should be defined by:

  • Early and more detailed planning and expanded identification of goals and criteria.
  • Design phase input/participation by contractors, manufacturers, and suppliers.
  • Non-design considerations during design (schedule, cost, construction, products).
  • Technology based communication, planning, and documentation, often using BIM as a base platform.

These elements are common to all of the “IPD” contractual models which have been promulgated in recent years. (See the AIA A195, A295, C195 and AGC Consensus Document 300, Sutter Health Model, Lean Construction Institute.) However, each of these models also recognizes that these shifts in timing, participation, and technology alone are unlikely, by themselves, to achieve the desired shift toward common interest, mutual respect and trust, and collaboration. Accordingly, each model moves beyond pure IPD and incorporates some elements of alliance or collaborative contracting. In this regard, there are as many approaches as there are contract forms.

By way of contrast, the AIA A295, A195, and B195 combine owner, contractor, and architect into a “Single Purpose Entity”. Typically, this is done by the creation of a new limited liability company which inherently invokes challenges for joint responsibility, record keeping, finances, and insurance. The AGC Consensus 300 counters with a three-party agreement of owner, contractor, and architect. All three entities maintain their separate status, but form a “Management Group” for decision making. The AGC also creates a “Collaborative Project Delivery Team” to include all needed team members. Each such structure comes with its own challenges and opportunities. The organizational structure is actually secondary to the other dynamics which are intended to facilitate the trust, respect, and collaboration among the team members, which are:

  • Mutual financial incentives which link key or all project participants’ financial success on the project to one another.
  • Waiver of internal claims and conflicts for purposes of cost, schedule, and (sometimes) defect issues.

In reality, these contracts are complicated and must be carefully tailored both to the project and the project partners. For architects considering such agreements, they should place particular focus on:

  • The selection and commitment of all project team members. Since financial rewards and success are linked, the dependence on others is more heightened than ever.
  • The availability of insurance and other resources to apply to internal issues as well as third-party claims.
  • Scope of design responsibility and autonomy, as opposed to collective decision making and reliance on others.