Legal

Legal and risk aspects of BIM Execution Plans (BxPs) can be complex. Best practices for addressing legal concerns, risk, and insurance liabilities in a BxP are highly dependent upon the scope of BIM services to be utilized on the project and the project delivery method. There are some trends the BIMForum BxP Guide that will help owners and their teams in their discussions with legal counsel and insurance agents and carriers. However, variables such as team make-up, project types, design and construction budget, and other extenuating factors also impact BxP best practices. As such, the rigorous treatment of this topic is beyond the scope of the introductory BxP Guide.

There are several available model contract forms that provide templates for both general contract terms and terms specific to BIM, some of which are included on this page. The major families of contracts currently available are those published by the American Institute of Architects, the Design Build Institute of America, the Counsel of American Consulting Engineers, and ConsensusDocs. This page provides reference links to these referenced model contracts, recognizing that many model contracts tie in to project delivery through reference to the BIM Execution Plan. The BxP needs to be treated consistent with other documents having legal implications. This page also includes excerpts from BIMForum presentations on these topics and information on cybersecurity and appropriate insurance coverages on BIM-related projects.

Why do Legal and Insurance Topics Matter in a BxP

Implementing BIM as a lifecycle tool on a construction project can be enhanced by the careful consideration of legal rights and obligations specific to each project, including, for example, legal issues related to BIM software use, BxP development, interactive implementation, and O&M use of completed models. Like any other tool, there are also risks associated with modeling processes that can be prudently reduced or appropriately shifted to those having the greatest ability to properly manage them. To maximize these rewards and minimize exposure to potential losses, a prudent BIM Champion will consider the legal and insurance needs arising out of use of BIM on their project and use this analysis to shape best return on investment in BIM technology and processes.

Legal and Insurance Topics to Consider in a BxP

The following is a non-exhaustive list of legal topics that can be addressed in a BxP.

  1. AIA – The American Institute of Architects has several useful form documents related to BIM use.  They include theAIA G202-2013, Project Building Information Modeling Protocol and E203™ – 2013 Building Information Modeling and Digital Data Exhibit.  The AIA BIM Protocol Model Element Table is a highly useful, easy-to-visualize, and readily adaptable tool for assigning responsibility for model production by team members and articulating Level of Development (LOD) during stages of model development. These documents may be utilized across a range of projects, from those where BIM will only be used during the design process to projects where a BIM model will be initiated by the designer but turned over to a contractor for use during the construction phase.
  2. ConsensusDocs – The ConsensusDocs 301 (2016) Building Information Modeling (BIM) was developed for complex projects where full lifecycle use of BIM will be undertaken.  Article 5 of this contract form specifically explores risk shifting and insurance coverage.  There are several helpful charts for assigning responsibility for end deliverables needed for operation and maintenance phase activities using completed BIM models.
  3. Other contracts (EJCDC, DBIA, FIDIC, custom contracts)
  4. Insurance products – express coverage in professional liability insurance, custom BIM Riders

How to start adding Legal and Insurance Topics to Your BxP:

Find the right person to ask (legal counsel and firm leadership)

Talk with BIM team members within and outside your organization who have experience preparing BxPs, particularly those with full lifecycle goals, and seen what does and doesn’t work in implementing them throughout a project.

Check for industry resources that have analyzed legal issues and are developing best practices, such as Penn State’s BIM Execution Planning Guide and the National Institute of Building Sciences’ buildingSMART allianceĀ®

Ask legal counsel about available insurance products and analyze existing company coverages for sufficiency.  Have legal counsel review BIM provisions in the prime contract, the BIM Addendum, the BxP and BIM provisions of consultant contracts before they are finalized and executed.  Where proprietary software and analysis tools will be used, have legal counsel assist in securing appropriate licenses.

Ask the right questions 

Question 1: How will BIM be used on the project?

Will BIM be used solely as a design tool, whether for design visualization or clash analysis? Or will BIM be used as an integrated, lifecycle tool – including conceptualization, design development, construction shop modeling and 4D/5D analyses, commissioning, O&M and decommissioning activities — or something in between? What are the client’s expectations and what is the client willing to pay for? Make sure that the anticipated BIM use is consistent with client’s expectations and willingness to pay.

Question 2: What deliverables must be generated using BIM?

There are a wide range of end products, but certain ones may be mission critical for a particular project. These could include, for example, design models (memorializing at various points in design development), clash analyses, sustainability analyses, cost/schedule analyses, field training and QC communications, facility operation and maintenance, and recycling planning to decommission the structure at the end of its useful life.  Articulate this list and it will help shape risk analysis.

Question 3: Which parties must be involved and reach agreement on legal issues and insurance coverage to deliver BIM successfully for the project?

Consider how best to address these issues in project delivery structures such as design-bid-build where all parties may not be identified at project start. 

Listing of Documents 

DBIA Library

#501 Standard Form of Contract for Design-Build Consultant Services

#520 Standard Form of Preliminary Agreement between Owner and Design-Builder

#580 Standard Form of Teaming Agreement between Design-Builder and Teaming Party

RFQ/RFP Forums 

#400 RFQ/RFP Guide

#405 Sample Request for Qualifications (RFQ)

#410 Sample Request for Proposals (RFP)

AIA Contract Documents

C106–2013, Digital Data Licensing Agreement

E203-2013 and G201-2013, Digital Data Protocol Exhibit

E203-2013 and G202-2013, Building Information Modeling Protocol Exhibit

E203–2013, Building Information Modeling and Digital Data Exhibit

G201–2013, Project Digital Data Protocol Form

G202–2013, Project Building Information Modeling Protocol Form


"Maintaining Cyber Security in a Collaborative Environment"

Description

Owners and contractors are awakening to the cold reality that sharing information and conducting transactions over the Internet or any other accessible network means exposure to the possibility of cyber attacks. Is your firm prepared? With emphasis on a shared BIM environment, this session provides an overview of the threats that exist today, steps the companies can take to protect themselves, and explains insurance coverage that is necessary to protect all parties in a construction project.

  • Recognize and avoid threats that can affect projects and approaches for mitigating the risks presented by cyber attacks.
  • Owner-driven measures to address threats
  • Cyber security as a prequalification criterion for bidding subcontractors
  • Guidelines regarding access to data and shared sites
  • Contractual requirements including indemnification and purchase of “cyber liability” insurance

Authors

Mike Hastings (MD Hastings Risk Consulting)

Carl Roberts (Law Offices of Carl G. Roberts)


"Legal, Insurance Aspects for BIMxP"

Authors

Patrick O’Connor, Brian P. Clifford, & Michael Hastings


Copyright Ā© 2020 BIMForum. All rights reserved.

BIMForum is a 501(c)6 organization.

Powered by Wild Apricot Membership Software