BIM and Modular Building. Legal and Contractual Considerations Stephen A. Hess, Esq.

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1 BIM and Modular Building Legal and Contractual Considerations, Esq.

2 Woolwich, Ferryview Health Center _geograph.org.uk_-_ jpg

3 Overview BIM and the Spearin Doctrine Shop Drawings and BIM BIM, Warranties, and Modular Building BIM, Modular Construction and the UCC Pass-Through Clauses and BIM

4 BIM and the Spearin Doctrine Spearin: Owner warrants the suitability of plans and specifications for construction Applies only to design specifications and not to performance specifications BIM may involve Contractor enough in design to erode Spearin Contracts can be adjusted so as to allocate responsibility in face of Spearin Modular construction and Spearin: are exact components specified?

5 BIM and the Spearin Doctrine Sec. 23. Steel Poles: (a) Steel poles shall be located as indicated on the plans. They shall be 100 feet in height and shall be equipped with platform assemblies, cross-arms, etc., all as indicated on the plans. The poles shall be design #544-Y-53 for mounting 32 floodlights per pole as manufactured by Union Metal Manufacturing Company, Canton, Ohio, or approved equal. The poles shall be guaranteed to withstand a wind pressure of 100 mph when the pole is completely equipped with all lights, wires, etc., in its intended location. The steel poles shall be mounted on the concrete foundations as indicated. (Italics supplied.) Sec. 31. Testing and Guarantee: * * * (b) * * * [The contractor] shall guarantee the material, equipment and workmanship furnished by him shall be entirely free from defects, and that he will repair or replace at his own expense as may be directed by the Architect, any material, equipment or workmanship in which defects may develop within one year from date of final payment for the work. Greater Richmond Civic Recreation, Inc. v. A. H. Ewing's Sons, Inc., 200 Va. 593, , 106 S.E.2d 595, 596 (Va.1959)

6 Shop Drawings and BIM Contractor is required to build in accordance with contract documents Plans and specifications are contract documents Contractual submittal requirements call for shop drawing approval by A/E Shop drawings are generally not contract documents Approval of shop drawings does not absolve contractor of responsibility to build according to plans

7 Shop Drawings and BIM Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents [unless specifically incorporated by subsequent action]. Their purpose is to demonstrate the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents for those portions of the Work for which the Contract Documents require submittals. Review by the Architect is subject to the limitations of Section Informational submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract Documents. Submittals that are not required by the Contract Documents may be returned by the Architect without action. AIA A GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION

8 BIM, Warranties and Modular Building General contractor provides its own warranty With respect to equipment, GC usually passes manufacturer warranty through to Owner GC does not guarantee warrant that is, warranty replaces (or supplements) GC s obligation Modularization presents elements at crossroads of warranties Requires attention to contract allocation to ensure that GC does not bite off more warranty than intended

9 BIM, Warranties and Modular Building 3.5 The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be [1] of good quality and new unless the Contract Documents require or permit otherwise. The Contractor further warrants that [2] the Work will conform to the requirements of the Contract Documents and [3] will be free from defects, except for those inherent in the quality of the Work the Contract Documents require or permit. Work, materials, or equipment not conforming to these requirements may be considered defective. [4] The Contractor s warranty excludes remedy for damage or defect caused by abuse, alterations to the Work not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Architect, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. AIA A GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION

10 BIM, Modular Construction, and the UCC Uniform Commercial Code is statute adopted by states that governs among other things sales of goods UCC applies to goods that are moveable at time of identification to contract UCC does not apply where goods are incidental to construction Open question is extent to which UCC may apply to modular construction components Ramifications: what laws govern the relationship between the parties contract law or UCC? How are contract rights and UCC rights different?

11 BIM, Modular Construction, and the UCC _Sets_10218,_10197,_and_10211_( ).jpg

12 Pass-Through Clauses and BIM Pass-through clauses help ensure that contractor s scope of work to Owner is completely and consistently allocated to subcontractors Scope of a pass-through clause may be limited to precise specifications Application to BIM is untested, and deserves attention Especially true where modular components may not generally encompass Division 1 or other general conditions