BIM in a Legal Context

Blog entry by: Dominik Holzer

In a recent meeting with construction lawyers it became apparent to me how important the legal profession is about to become in assisting the construction industry to escape from the impasse we witness in the adoption of BIM. Whereas technical issues related to the implementation of BIM undergo ever greater resolution, there are manifold contractual, IP and legal issues that are as yet little resolved.

There still exists confusion about the terminology among clients, contractors and consultants alike. The confusion does not necessarily relate to finding the perfect definition for BIM, but it rather relates to satisfying common expectations by collaborators on projects. At this point in time BIM deliverables are mostly ill-defined and the value of BIM for various stakeholders is misunderstood. There also exist a range of unanswered questions about intellectual property (IP).

When providing custom BIM content, where do rights reside to protect one’s work? Should one consider charging royalties for developing specific BIM components, or is the information generated by individual consultants simply becoming available to everyone in an open source manner? Any agreement involving BIM therefore needs to include a statement of IP ownership as well as a delineation of responsibilities and liabilities regarding BIM content that gets shared across multiple parties.

We need to establish from the outset what the individual players’ role is as part of BIM model creation. Who is responsible for which part of the model? Agreed BIM Standards and BIM Project Plans (such as the Penn State Project Execution Plan) need to be in place that are accepted by the entire project team. The industry faces the question if such BIM Project Plans sit within, or outside of the contract.

In order to determine and distribute liability inherent to the BIM model, architects and their collaborators need to consider the spectrum of risk related to the services they offer. Fitness for purpose’ warranties need to be put in place to protect individual parties from becoming liable for the correctness of their BIMs. When passed on to others without due diligence, there is a chance that model information is used for different purposes than initially intended by the author. Insurance companies are currently not on board in providing umbrella insurance for the entire project in Australia, and we only slowly see these developments affecting the US market. 

In consideration of the increasing interest by clients about operational and performance aspects of their buildings, we may witness a change of premise from consultants delivering a product (building) towards delivering a  service. If one thinks this idea through, there may even be a chance that designers and consultants will be held responsible for the performative quality of their projects in conjunction to the predicted values during design.