BIM, Bam, Boom: the Legal Implications of Making Design Better

By Catherine MacInnis, Associate General Counsel, IBI Group Inc.   

Design technology is not new. Humans have been improving and innovating the  ways  in  which  we  create  stuff  for  millennia.  BIM  is, however, proving to be one of the most impactful and disruptive technologies in a long line of advancements that simply began with early humans making tools from rocks.

Design technology is more mature than law by millions of years. And, as anyone who has ever told a lawyer joke seems to know: the lawyers have never really caught up. At the risk of sounding defensive (because I am), this view of the law and its professionals is a bit unfair. Existing laws are actually intended to be flexible enough to respond to the issues created by new technologies – including BIM. From a practical perspective, however, BIM has not yet been fully tested by laws in Canada.

This article will examine the legal implications of BIM thus far and aims to extract further risk mitigation techniques from what is currently known about design and construction litigation more generally.

Keeping Score

Depending on who you believe, BIM-related technologies and their predecessors have been around for anywhere from 30 to 571 years. BIM itself has been gaining traction in Canada for a little over a decade now. In those years there have been precious few reported decisions by judges or administrative bodies in Canada regarding BIM technology. There could be a number of reasons for the lack of jurisprudence in this area, but likely:

  1. BIM is too young to have a legal history;
  • Most disputes (BIM or not) settle, with results kept confidential; and
  • BIM technology appears to mitigate risks for design professionals though clash detection, including through IBI Group’s BIMbot clash detection software, and other embedded quality controls on projects

It is too early to break out the champagne and celebrate the end of  design disputes as we know them, but insurance companies appear to be cautiously optimistic that the use of BIM will reduce professional liability risk. Cynthia Davison, CIP AIG, Senior E&O Underwriting Specialist, Financial Lines in Vancouver advised “…generally use of BIM is seen as a positive when underwriting.”

Trigger Warnings

Here are some potential pitfalls you should be thinking about in your practice:

1.   Privacy

At its core, BIM is data-rich. Where there is data, there is an obligation on you to use and protect that information wisely. Davidson from AIG notes: “…[I] would point out that hosting a BIM drawing is similar to    a cloud computing exposure, and a design firm could potentially have liability for corrupting a BIM model under their supervision or control, as well as liability associated with the loss of a third party’s proprietary data (building designs).

2.    BIM Cannot Cure a Failure to Communicate

Design technology should be serving to improve projects and the  careers of design professionals. It cannot, however, cure a failure to communicate. On of the first BIM lawsuit in the United States involved a mechanical-electrical-plumbing engineer and an architect, who were working on a life-sciences building for a major university in the US. BIM had been used to fit the MEP systems in the ceiling plenum. According to an insurance carrier on the file, the design team never discussed the installation sequence with the contractor (who was unsophisticated)2. The elements for the plenum fit in the BIM model, but did not work in real life because of the sequencing issues. The result was that about 70% through assembly, they ran out of space for the plenum. The knock on consequences for the project were huge. The case settled out of court, so there is no formal ruling which we can rely on – but it is fair to assume that the design professionals and their carriers paid a hefty price for what amounted to a lack of communication.

3.    Unintended Consequences for Non-Designers

Non-designers working in BIM need to be cautious. They should not, for instance, agree to act as an Information Manager or BIM Lead, as they may create potentially uninsured risks on the project.3

Prepare for the Worst and You May Avoid It

Here are 4 things you can do right now to mitigate risk in your practice:

1.   Thoughtful contracting

Among other things, review contracts to ensure  that  you understand and properly document your scope and how you will be expected to coordinate and collaborate with the contractor(s) and other professionals on the project. Farhan Haqqani, IBI Group Inc.’s Regional Technical Lead for Design Technology (Canada East) advises: “Keep an eye out for specific BIM requirements i.e. clash detection or asset or facility management, or a LOD (level of development) 400 model and software requirements…In these contracts the client looking to use the BIM model for something more than basic coordination. I also recommend including a BIM Execution Plan in the contract and ensuring that all disciplines are using BIM

2.    Interface with Contractor Team Regularly

This will help avoid confusion and expensive errors down the road. Even with contractors becoming more sophisticated in BIM, there is a tendency to blame the professionals (fairly or not). Haqqani recommends that you also “…bring your BIM lead to (project) meetings so they are aware of how to update the BIM model strategies”.

3.    Keep Good Record

Good document control is a sign of professionalism, which may also help you avoid litigation. If the worst happens and there is litigation, you are more likely to be successful if you have the documents you need.

As a starting point, your team should know where key documents are stored and be required to assist in maintaining a database that includes: all relevant contract documents; directives and requests from the client and others on the project; and evidence of coordination and maintenance of project standards. According to Haqqani, it is also essential to make sure that your project is accurately archived. This will help in re-tracing your steps if there is ever a problem.

4. Share your failures internally (really)

Designers and BIM professionals are not (likely) perfect and BIM technology is ever-evolving. There are going to be bumps on the road. Sharing lessons learned is the best way to make sure that your team never makes the same mistake twice. Haqqani recommends that the lessons learned be incorporated in your checklists (i.e. if a building regulation for a client was inadvertently not indluded on one project, you can add that as a line item on your checklist so it doesn’t happen again).

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