During my years on the AIA Contract Documents Committee we would often discuss the “wide open territory” of liability in the emerging age of BIM. Our colleagues from the insurance industry, who provided regular reports on the hot issues of the day, rarely mentioned BIM except to remind us that it was an unknown and should be treated as such. Most of our musings contemplated widening liability for architects using BIM, as issues of responsible control and professional influence would be muddied as the team compiled the design in parametric, digital form. On the lecture circuit I would often get asked similar questions: “How is liability affected in a BIM project? Doesn’t it expose designers to builder’s risk, and builders to professional liability?” A few attorneys—especially in New York City—stirred the pot further by warning their (mostly architect) clients of the looming potential for BIM-based disaster and gave standing-room only seminars to that effect.
I recently informally polled a few attorneys who work construction law about what they were seeing out there, and the landscape appears much the same as it did five years ago even as BIM adoption pushes, according to McGraw Hill, toward 60% in the US AEC market. My friend Howard Ashcraft (who wrote the IPD agreements for the Autodesk projects) pointed me to a very interesting paper he wrote for CNA/Schinnerer’s attorneys in 2008 where he posits the following:
BIM can affect the standard of care in several ways. At the most basic level, is it below the standard of care not to use BIM if using BIM can readily solve design issues that resist solution when attacked with traditional tools? Clash detection of complex structures is an obvious example.
Historically, designs were developed to a nearly complete level with details omitted to be completed by the contractor from the final, but “diagrammatic” design. In part, this practice was justified because the designer did not know which specific systems would be chosen by the contractor. In other cases, the final layouts were deemed part of the contractor’s means and methods and, therefore, not the designer’s concern. Because the design was not complete when issued, coordination was often overlooked. More often than one would like, this resulted in designs that could not be coordinated by the contractor or, if it could eventually be coordinated, had a layout that was inefficient and expensive. Many delay and impact claims are born from this coordination problem.
The coordination problems can almost be eliminated if BIM is used. BIM allows the designer, the contractor and the subcontractors to dimensionally check their respective work and assure that physical conflicts do not occur. Clash reports can be automatically run in the BIM software, or multiple models can be imported into a common viewer, such as Autodesk/NavisWorks JetStream. Physical conflict issues can be eliminated during the design phase and confirmed with electronic submittals. Given the expense and disruption caused by clashes discovered during construction, and the ease with which this problem is solved, does the standard of care require that the designer use tools that eliminate this costly problem? In the author's opinion, traditionally coordinated 2D drawings are no longer sufficient for complex structures, particularly those with significant mechanical, electrical and plumbing systems.
Building Information Modeling also permits rapid comparison of alternatives with iterative improvements in cost, energy utilization and sustainability. As noted in a recent ASHRAE report, sustainability goals require the use of BIM and collaborative project methodologies. Where sustainability is a goal–and it is in many projects today–can traditional approaches be justified?
(From “Building Information Modeling 2.0/Issues and Implementation” presented by H. Ashcraft to the Schinnerer Invited Attorney’s Meeting, 2008)
The implications of this line of reasoning are profound: where we once thought BIM might create greater exposure because of its use, this reasoning suggests that a team’s failure to use a readily available technology that would have allowed them to do a competent job could constitute negligence. Too many clashes on the job site? Energy performance unoptimized? Would BIM have done better if you used it?
As you might imagine, this argument has a certain “third rail” quality when posited by a software company like ours, so I have avoided it up until now. And I while I’m fascinated by Howard’s analysis, only time (and the plaintiff’s bar) will tell if in fact he’s correct. But Howard reminded me recently of another interesting biorhythm of the building industry: a wave of negligence claims always follows an economic downturn. Owners seek remedy for shoddy work produced by designers and builders working at or below cost; corners are cut along with margins; bad work results. So it won’t be long before we learn whether Howard’s assertion is the next subject of discussion amongst insurance carriers and their clients.