S38 The Top 5 Legal Issues of Building Information by zqw77719

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									                                                        T H E P O W E R O F D I V E R S I T Y:
                                                        P R AC T I C E I N A CO M P L E X WO R L D




    convention                                          A P R I L 3 0 – M AY 2 S A N F R A N C I S C O




S38 The Top 5 Legal Issues of Building Information Modeling
05/02/09 8:15 a.m. – 9:45 a.m.

1.5 LUs-Advanced Level

The architectural professional is in the midst of an exciting technological revolution with
the adoption of Building Information Modeling. Like any paradigm shift, questions are
being asked about the broader ramifications of this emerging tool on our practices. How
does the architect's standard of care evolve with BIM as the norm? Who owns and
controls the model? What are best practices for incorporating BIM in contractual
relationships? Will state regulatory controls govern contributions to and use of the
model? In what ways has professional liability insurance addressed BIM? This timely
program features an architect/attorney and a firm principal to explain where we have
come from. Attendees are invited to a lively discussion of how we answer these
important legal questions.

Learning objectives:

     •    Identify best practices to integrate BIM into wider use in their firms by relying on
          established aspects of the profession, such as the architect's standard of care
          and AIA contract documents
     •    Explain prominent issues associated with the shift to BIM, such as risk
          management, insurance, and key legal issues
     •    Assess the long-term legal impact of BIM on our professional practices and on
          the larger construction industry

Speaker: Adam T. Mow, Esq. AIA, and Kenneth J. Naylor, AIA, NCARB

Provider: Babcock Scott & Babcock and Naylor Wentworth Lund Architects

S38 Saturday, May 2, 8:15-9:45 a.m.
This presentation is protected by U.S. and international copyright laws. Reproduction, distribution, display, and use of
the presentation without written permission of the speaker is prohibited.

This program is registered with the AIA/CES for continuing professional education. As such, it does not include
content that may be deemed or construed to constitute approval, sponsorship, or endorsement by the AIA of any
method, product, service, enterprise, or organization. The statements expressed by speakers, panelists, and other
participants reflect their own views and do not necessarily reflect the views or positions of the American Institute of
Architects or of AIA components, or those of their respective officers, directors, members, employees, or other
organizations, groups, or individuals associated with them. Questions related to specific products and services may be
addressed at the conclusion of this presentation.
          The Top 5 Legal Issues of Building Information Modeling

How does the architect's standard of care evolve with BIM as the norm?
AIA Documents Standard of Care
Are you better or worse off with BIM?
Consistency and coordination
Where does liability lie?
Means and methods

What are best practices for incorporating BIM in contractual relationships?
Reliance on and use of data/model
Standard of care
Copyrights and licenses

Who owns and controls the model?
Copyrights and licenses
Architect as the model manager

Will state regulatory controls govern contributions to and use of the model?
Responsible control & HSW
What are the construction documents?
Are contributors to the model appropriately licensed as design professionals?
Embedded information from manufacturers
Services the software performs

In what ways has professional liability insurance addressed BIM?
Consistency and coordination
Collaboration
Means and methods
OCIP for single purpose entities



Speakers and Contact Information

Adam T. Mow, AIA, Esq.                       Kenneth J. Naylor, AIA, NCARB
Babcock Scott & Babcock                      Naylor Wentworth Lund Architects
adam@babcockscott.com                        ken@nwlarchitects.com
801-531-7000                                 801-355-5959




                                                                                1
The Top 5 Legal Issues of
Building Information Modeling
S38




      This presentation is protected by US and
      International Copyright laws. Reproduction,
      distribution, display and use of the presentation
      without written permission of the speaker is
      prohibited.




      This program is registered with the AIA/CES for continuing
      professional education. As such, it does not include content
      that may be deemed or construed to constitute approval,
      sponsorship or endorsement by the AIA of any method,
      product, service, enterprise or organization. The statements
      expressed by speakers, panelists, and other participants
      reflect their own views and do not necessarily reflect the
      views or positions of The American Institute of Architects or of
      AIA components, or those of their respective officers,
      directors, members, employees, or other organizations,
      groups or individuals associated with them. Questions related
      to specific products and services may be addressed at the
      conclusion of this presentation.




                                                                         2
Learning Objectives

  • Identify best practices to integrate BIM into
    wider use in firms by relying on established
    aspects of the profession, such as the
    architect's standard of care and AIA contract
    documents
  • Explain prominent issues associated with the
    shift to BIM, such as risk management,
    insurance, and key legal issues
  • Assess the long-term legal impact of BIM on our
    professional practices and on the larger
    construction industry




The Top 5 Issues

1 - How does the architect's standard of
   care evolve with BIM as the norm?
2 - What are best practices for incorporating
    BIM in contractual relationships?
3 - Who owns and controls the model?
4 - Will state regulatory controls govern
    contributions to and use of the model?
5 - In what ways has professional liability
   insurance addressed BIM?




Definitions

Building Information Model (BIM):
“[A] digital representation of physical and
   functional characteristics of a facility. A
   BIM is a shared knowledge resource for
   information about a facility forming a
   reliable basis for decisions during its life-
   cycle; defined as existing from earliest
   conception to demolition.”

National Building Information Model Standard Project Committee




                                                                 3
Definitions
Integrated Project Delivery (IPD):
“[A] project delivery approach that
   integrates people, systems, business
   structures and practices into a process
   that collaboratively harnesses the talents
   and insights of all participants to optimize
   project results, increase value to the
   owner, reduce waste, and maximize
   efficiency through all phases of design,
   fabrication, and construction.”
Integrated Project Delivery: A Guide, 2007




Definitions

            BIM                               IPD
• Tool or process                • Project delivery
• Design-bid-build,                method
  Design-build, or               • 2D, 3D, or BIM
  IPD                            • Collaborative




Statistics

Of industry participants, architects are
   using BIM most.
43% of surveyed architects are “heavy users”
54% expect to be “heavy users” in next year

SmartMarket Report on Building Information Modeling




                                                      4
Levels of Acceptance
lonely BIM:
   BIM capability within a firm

social BIM:
   Collaboration with other firms using BIM

intimate BIM:
    Owner, architect, and contractor share risk and
    reward with BIM-enabled IPD

cheruBIM:
   Project nirvana using BIM
coined by John Tocci and Scott Simpson




                        ISSUE #1
  How does the architect's
standard of care evolve with
     BIM as the norm?




Standard of Care

“The Architect shall perform its services
   consistent with the professional skill and
   care ordinarily provided by architects
   practicing in the same or similar locality
   under the same or similar circumstances.”

AIA Document B101-2007 2.2  §
AIA Document B195-2008 1.2  §




                                                      5
Standard of Care

Key questions:
Are you better or worse off with BIM?
Consistency & Coordination-less chance of errors
  and omissions (if your peers are avoiding
  design conflicts through BIM, shouldn’t you?)
Where Does Liability Lie? (who provided and
  reviewed the information in the model?)
Means and methods (are you treading into the
  contractor’s territory?)




                    ISSUE #2
 What are best practices for
   incorporating BIM in
 contractual relationships?




Contracts

AIA Document E202-2008, Building Information Modeling
   Protocol Exhibit (versions for Traditional or IPD)


AIA Document B101-2007, Standard Form of Agreement
    Between Owner and Architect
AIA Document A295-2008, General Conditions of the
    Contract for Integrated Project Delivery
AIA Document B195-2008, Standard Form Agreement
    Between Owner and Architect for an Integrated Project
AIA Document C195-2008, Standard Form Single Purpose
    Entity Agreement for Integrated Project Delivery
AIA Document E201-2007, Digital Data Protocol Exhibit




                                                            6
Contracts

E202-2008 BIM Protocol Exhibit
Exhibit to Owner-Architect agreement
Establishes protocols for reliance on or use of
   data/model

AIA Owner-Architect agreements set:
Standard of Care
    – B101-2007 or B195-2008
Copyrights and Licenses
    – B101-2007 or B195-2008




Contracts (Reliance)

“Authors may rely on the accuracy and
  completeness of a Model Element consistent
  only with the content required for a LOD
  [level of development] identified in Section
  4.3.”

AIA Document E202-2008 4.1.2
                      §




Contracts (Reliance)
“Any use of, or reliance on, a Model Element
   inconsistent with the LOD indicated in Section 4.3
   by subsequent Model Element Authors or Model
   Users shall be at their sole risk and without
   liability to the Model Element Author. To the
   fullest extent permitted by law, subsequent Model
   Element Authors and Model Users shall indemnify
   and defend the Model Element Author from and
   against all claims arising from or related to the
   subsequent Model Element Author’s or Model
   User’s modification to, or unauthorized use of,
   the Model Element Author’s content.”

AIA Document E202-2008 4.1.3
                      §




                                                        7
Contracts (Copyrights)

“The Architect and the Architect’s consultants
   shall be deemed the authors and owners of
   their respective Instruments of Service,
   including the Drawings and Specifications,
   and shall retain all common law, statutory
   and other reserved rights, including
   copyrights.”

AIA Document B101-2007 7.2
                      §
AIA Document B195-2008 3.2
                      §




                   ISSUE #3
 Who owns and controls the
         model?




Copyrights

“In contributing content to the Model, the Model
   Element Author does not convey any
   ownership right in the content provided or in
   the software used to generate the content.”

AIA Document E202-2008, 2.2
                       §




                                                   8
Licenses

“Unless otherwise granted in a separate license,
  any subsequent Model Element Author’s and
  Model User’s right to use, modify, or further
  transmit the Model is specifically limited to
  the design and construction of the Project,
  and nothing contained in this Exhibit
  conveys any other right to use the Model for
  another purpose.”

AIA Document E202-2008, 2.2
                       §




Control

“The Architect will manage the Model from the
   inception of the Project.”

AIA Document E202-2008, 2.4.1
                           §


Management includes:
•   Establish protocols for storage and access
•   Collect models
•   Perform clash detection
•   Maintain archives




                   ISSUE #4
       Will state regulatory
          controls govern
    contributions to and use of
            the model?




                                                   9
Responsible Control

Health, Safety, and Welfare is the focus


Best practice:
Use separate “federated” models of drawings, text
  and components controlled by their respective
  authors but linked and accessible to others
  needing model information.




Responsible Control

Key questions:
What are the construction documents?
      – Model or 2D drawings?
Are contributors to the model appropriately licensed
   as design professionals?
Is there sufficient control over embedded
    information from manufacturers?
Is there sufficient control over services the software
    performs (e.g., details)?




Responsible Control
“That amount of control over and detailed
   professional knowledge of the content of
   technical submissions during their preparation as
   is ordinarily exercised by a registered architect
   applying the required professional standard of
   care, including an architect’s integration of
   information from manufacturers, suppliers,
   installers, or other trusted sources that is
   incidental to and intended to be incorporated
   into the architect’s technical submissions if
   the architect has coordinated and reviewed
   such information.”
Redefinition of “Responsible Control” by NCARB IPD Task Force




                                                                10
Responsible Control
“Other reviewing, or reviewing and correction, of
   technical submissions after they have been
   prepared by others does not constitute the
   exercise of responsible control because the
   reviewer has neither control over nor detailed
   professional knowledge of the content of such
   submissions throughout their preparation.”

Redefinition of “Responsible Control” by NCARB IPD Task Force




                        ISSUE #5
       In what ways has
     professional liability
  insurance addressed BIM?




Insurance

Primary concerns:
    Standard of care
    Scope creep
    Damage from viruses
    Software compatibility
    Electronic transfer of files
    Undefined responsibilities




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Insurance

The bottom line (as we now know it):
   BIM for consistency and coordination = OK
   BIM in collaboration = OK with traditional roles
   BIM in means and methods = DANGER
   OCIP for single purpose entities (AIA C195-
   2008)




           QUESTIONS?




Speakers & Contact Information

Adam T. Mow, AIA, Esq.
Babcock Scott & Babcock
adam@babcockscott.com
801-531-7000

Kenneth J. Naylor, AIA, NCARB
Naylor Wentworth Lund Architects
ken@nwlarchitects.com
801-355-5959




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