Presenting a live 90 minute webinar with interactive Q&A. Td Today s faculty features:

Transcription

1 Presenting a live 90 minute webinar with interactive Q&A Building Information Modeling Technology: Identifying and Mitigating Legal Risks Evaluating BIM's Impact on Construction Projects, Potential Liability and Contracting Issues TUESDAY, JULY 30, pm Eastern 12pm Central 11am Mountain 10am Pacific Td Today s faculty features: Joel L. Halverson, Member, Severson & Werson, San Francisco Theodore D. Levin, Partner, Morris Polich & Purdy, Los Angeles Clark T. Thiel, Partner, Jones Day, San Francisco The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 BUILDING INFORMATION MODELING TECHNOLOGY: IDENTIFYING AND MITIGATING July 30, 2013 LEGAL RISKS Joel L. Halverson, Severson & Werson Theodore D. Levin, P.E., Morris Polich & Purdy Clark T. Thiel, AIA, Jones Day

6 Panel Topics 6 What is BIM? To the Designer? Contractor? Owner? How Does BIM Affect Traditional Relationships? What are the Primary BIM-Associated Risks? How Can Those Risks be Effectively Managed?

7 Hypothetical Project Design 7 Owen Anderson owned a 15-story, 75,000 sf office building built in the 1940s. Anderson retained NVA to design a major remodel. Anderson intended to award the construction contract to his nephew, Junior. NVA represented it had experience and parties entered into an agreement.

8 Hypothetical Project Design 8 Anderson provided NVA with as-built drawings. NVA began modeling the building with Revit. CAD operator took over the primary drafting. Lack of cooperation from Junior.

9 Hypothetical Project Design 9 Model view used by plumbing engineer did not display background information correctly. 1,500+ clashes corrected. Electrical engineering late and included old changes. Model included all major systems, but five months late.

10 What is BIM? 10 A data rich digital representation cataloging the physical and functional characteristics of design and construction. Its purpose is to make the design information explicit, so that the design intent and program can be immediately understood and automatically evaluated.

11 What is BIM? 11 BIM is a digital representation of physical and functional characteristics of a facility. As such it serves as a shared knowledge resource for information about a facility forming a reliable basis for decisions during its life-cycle from inception onward. - National Institute of Building Standards

12 What is BIM? 12 Dirksen Courthouse Laser Scan to Model

13 What is BIM? 13 3D Model + Schedule = 4D Model / Sequencing

14 What is BIM? 14 To the Design Professional Spatial Validation MEP Acoustics Structure Lighting Shading and Shadows Wind and Air Flow Radiance Massing

15 What is BIM? 15 To the Design Professional Improved Communication Virtual Construction Efficiency? Cost reduction?

16 What is BIM? 16 To the Contractor /Supplier o o o o Visualization Aid Coordination Quantity Take-Offs Shdli Scheduling

17 What is BIM? 17 To the Owner Improved productivity Improved quality Seamless transfer of knowledge through: Facility planning Design Construction Facility Management Operation Recapitalization / Disposal

18 How is BIM Currently Being Used? 18 Building models embedded with detailed information about a construction project are far beyond the capabilities of most design firms at present. - AIA Practice Management Digest, Summer 2007

19 How is BIM Currently Being Used? 19 Design Preparation &Distribution of Traditional 2-D Plans 3-D Modeling 4-D? Animations Alternative Solutions and Options Conflict Identification & Resolution Clash Detection Constructability Reviews Specifications

20 How is BIM Currently Being Used? 20 Estimating and Material Take-Offs Size and Area Data Bill of Materials and Costs Productivity Data Shop Drawings Construction Details Fabrication Information o As-Builts

21 How is BIM Currently Being Used? 21 Facilities Management Maintenance Protocol Warranty Information Energy Optimization Inventory Control Repairs, Replacements, and Upgrades Remodeling and Renovations Emergence Response Simulations

22 The Allure and Promises of BIM 22 When you can design and document in exacting detail and accuracy, when you can test and simulate without constructing, when construction costs can be reduced 20 percent and more, when construction time can be reduced significantly and ad we when you can efficiently ce maintain and operate completed projects, it changes everything. (Dennis Neeley, SmartBIM, Western Region 2012 Spring Meeting, American Architectural Manufacturers Association, April 10-11, 2012.)

23 BIM and Integrated Project Delivery 23 BIM promotes the use of IPD because it requires builders and designers to join together to build the project virtually, requiring integration at an early stage: Identify and resolve design issues. Provide strategic cost estimating services. Influence construction sequencing. Streamline materials procurement.

24 BIM Challenges 24 Cost. Time, including more downtime on the front end due to extra training required. BIM models may not be fully shared or integrated. Project parties still want & expect very distinct roles & liabilities. Licensing requirements require a designer of record who is in responsible charge of all work performed. Contract law is always aimed at defining the [single] responsible party.

25 BIM Challenges 25 Designer is the key adopter, but Designer sees the least immediate benefit from BIM. Designers concerned about liabilities from letting others have electronic access to Model. All are concerned about preserving intellectual property p rights.

26 26 Owner General Construction Project Legal Relationships and Obligations Design-Bid-Build Traditional Method Owner Contracts Separately with Contractor and Designer (Prime Architect or Engineer) All duties flow through h the Owner Design-Build Owner Contracts with Single Entity to provide both construction and design Goal is to reduce risks, costs and schedule for Owner But, is sometimes criticized

27 General Construction Project Legal 27 Relationships and Obligations Designer Contractual Comply pywith Obligations Pursuant to Agreement Include Necessary Exclusions, As Appropriate Non-Contractual Comply with Standard of Care (whether discussed in the contract or not) Work cooperatively and in good faith with contractor and other parties

28 General Construction Project Legal Relationships and Obligations 28 Contractor o Contractual Contract Should be as Complete as Possible to Include all Details f th W k t b P id d d ll N B i T of the Work to be Provided, and all Necessary Business Terms Non-Contractual Responsibilities to Parties Outside of Contract, including for Property Damage and Personal Injury Implied Warranties of Fitness, Merchantability, and to Not Delay or Hinder Other Project Parties

29 Standard of Care 29 In performing professional services for a client, a design professional has the duty to have and use that degree of learning and skill ordinarily possessed and used by reputable design professionals, practicing i in the same or similar locality and under similar circumstances, and to use reasonable diligence and his best judgment in the exercise of his professional skill and in the application of his learning, in an effort to accomplish the purpose for which he was employed. Clark v. City of Seward, 659 P.2d 1227 (Alaska 1983)

30 Is BIM Yet the Standard? 30 Slowly Increasing Number of BIM Projects 62% use BIM on less than ½ of projects 25% do no BIM projects 75% expect to use BIM on ½ + of projects next 3 years 10% respondents expect use BIM on all projects in 3 years (Survey by Design Master Software Inc. for ConstructionPro Network)

31 Is BIM Yet the Standard? 31 Historically, false expectations regarding increasing prevalence of BIM BIM use changed very little between 2010 and 2011 and actually decreased slightly Greater use in hih high-profile projects such as stadiums, hospitals and skyscrapers (Survey by Design Master Software Inc. for ConstructionPro Network)

32 Warranty y/ Misrepresentation 32 Parties Unrealistic Expectations Puffery Third-Party Reliance Spearin Doctrine

33 Design Responsibility 33 Delegation (Professional License Requirements) Design vs. Means & Methods

34 Is BIM Yet the Standard? 34 Because of uncertainties inherent in the evolution of BIM in the construction industry (and good business practice), users must address the various parties roles and duties through their contracts.

35 Contractual Considerations 35 Lack of standard form BIM agreements means that BIM issues contractually are: Not dealt with at all, or Dealt with on a one-off basis (usually just addressing rights of others to use Designer- generated model, and related protection for Designer).

36 Contractual Considerations 36 Is the Model Created and Maintained by a Single- Source or by Multiple Participants? Who is Responsible for: Establishing and Enforcing Standards? Ensuring Software Interoperability? Data Input? Coordination and Maintenance? Accuracy of information? i Mistakes?

37 Contractual Considerations 37 Intellectual Property/Ownership of Data Use/Reuse of Entire Model Use/Reuse of Standard Components Data Preservation/Loss of Data

38 Contractual Considerations 38 Risk Allocation - Which Party Can Best Control the Risk? Disclaimers/Liability Limits Insurance Project Policy General Liability Policies Professional Liability Policies Performance Bonds Modeling Responsibilities Follow-On Contractor s Responsibilities

39 Contractual Considerations 39 Standard Form Agreements AIA Document E ConsensusDOCS 301 BIM Addendum Design Model vs. Construction Model Others

40 Other Effects of BIM on Project 40 Aesthetics Ability to view project design inside and out at all stages, with detail and accuracy Improved collaboration between disciplines can also improve aesthetics Time The fourth dimension scheduling Linking construction ti schedule to the model allows improvement of project controls capabilities by providing a visual picture of the project at any given point in time Cost Allows the fifth dimension of project estimating Can have enormous savings through efficiencies

41 Hypothetical Project Construction 41 Junior gets construction contract. Insufficient information for accurate quantity takeoffs and calcs. Unconstructible aspects of the design, p g, erroneous as-built information, etc. prompting RFIs, redesign and delays.

42 Hypothetical Project Construction 42 Construction change orders at 35%. Over a year of delay. No updated record information. Suit filed for breach of contract, professional negligence and fraud.

43 Best Practices - Designers 43 Identify where BIM is required by the normal practice. Embrace available processes and technologies no later than when they become ordinary. Retain and continue to apply the professional skill and judgment consistent with the training and licensing to verify and validate output data. Define the boundaries of contractual commitments consistent with capacity to fulfill those commitments. Document the key assumptions, expectations, procedures, mutual expectations and future uses.

44 Best Practices - Designers 44 Identify contributors roles, contributions and rights of access, modification and use. Establish responsibilities for content, process and schedule requirements for input and validation. Determine when to open the model to use, contribution, and manipulation by others and then transfer primary overall responsibility for the model at that point. Reasonably temper client and contractor expectations by making clear that BIM by itself is only a technology.

45 Best Practices - Contractors 45 Embrace the BIM concept to provide best project for the Owner and increasing project profit potential. Use BIM for inter-company integration, of the pre- construction and construction teams. Utilize significant potential cost savings from BIM scheduling and cost capabilities. Obtain subcontractor buy-in in utilization of the model. Collaborate with the design team using BIM s capabilities.

46 Best Practices - Owners 46 Identify instances where BIM will be beneficial to the entire lifecycle of the facility. Clearly define the contractual commitments of the various parties and confirm their respective abilities to satisfy those commitments. Document the key assumptions, expectations, procedures, mutual expectations and future uses. Clearly delineate each participant s roles, contributions and responsibilities.

47 Best Practices - Owners 47 Ensure 100% buy-in by all involved. Establish and maintain contingency plans. Be vigilant about the maintenance of the model throughout the design, construction, and occupancy stages of the facility. Maximize the benefits of your investment in the model.