Building Information Modeling (BIM) is a form of “machine learning” that has gained prominence in today’s construction industry. However, accompanying the many benefits of BIM are new legal risks that might escape first glance.
Law firm Pepper Hamilton LLP based in Philadelphia, Pa., notes past practise and law has implied that if the contractor has built in accordance with the plans and specifications provided they would not be liable for deficiencies in the finished product. In fact, they could be entitled to compensation for any increased resultant costs of construction.
However, they point out that because of technologies like BIM, “the bright line between design and construction (has) blurred and with it the allocation of risk.”
The good news is that BIM allows project partners to access, view and modify the project model. The depth of detail made possible by BIM technology is extraordinary. However, with more people having access to those modifications, this higher level of communication between stakeholders can result in even more comments and further modifications. The overlap of duties and data can become intense.
Yet despite the potential for excellent communication between project partners through BIM, bad communication is also a possibility.
“No amount of sophisticated technology will remove the possibility of human errors,” says Jonathan Hutt of U.K.-based international law firm Reynolds Porter Chamberlain. “If this is compounded by poor communications between parties when making changes to a BIM model (or models), problems may occur.”
Hutt cites the example of a university Life Sciences building in the United States. Plumbing components appeared to fit perfectly in the BIM modelling but failed when the incorrect installation sequence was used.
“This illustrates that BIM is only as good as the people using it and the communication of relevant information.”
As a result, the high level of cross-boundary collaboration across the wide spectrum of those involved creates new and implied liability risks, says Joseph Cleves, Jr. of U.S. law firm Taft Stettinius and Hollister.
“The roles and responsibilities of participants can become irreversibly intertwined in BIM. In other words, it may become impossible to ascribe responsibility, and therefore fault, to the correct actor when numerous actors are given broad decision-making authority. Given all the hands touching the design documents, it is very important, in particular, to define the design responsibilities carefully.”
“Participants, contractors in particular, cannot casually use the technology assuming they are protected from liability in the event that something goes wrong,” says Pepper Hamilton LLP. “Each must make a real commitment to participate as a partner in the process and ensure that the information it contributes is accurate and complete. In other words, it must actively manage and mitigate the risks of collaboration in order to fully enjoy its benefits.”
The issue of intellectual property and copyrights, as it applies to architecture and construction, can also co-join with these new liability risks, given the many different stakeholders contributing to a project’s design through BIM technology.
“It is important to remember that, generally, copyright in an architectural work remains with the architect unless there is an agreement to the contrary, and, crucially, ownership of the plans or a building do not translate into ownership of copyright,” say Sebastian Beck-Watt and Catherine Lovrics of Marks and Clerk in Toronto. “Failing to consider and clear copyrights before designing and/or constructing a building can carry material risks and costly liability.”
However, while design processes like BIM have changed the manner in which projects are created, it remains to be seen exactly to what extent BIM collaboration may impact copyright protection in Canada.
For that reason, Cleves reiterates his bottom line for contracted parties: Make no assumptions and attempt to spell out project responsibilities as clearly as possible in the contracts.
“If parties fail to do so, they will be left to follow a convoluted web of information to locate the ‘true owner’ of the model.”
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.
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