Transcript cmaanet.org

Construction Management Association of America
CMAA Technology Seminar
on Building Information Modeling (BIM)
Ronald D. Ciotti
28 State Street  Boston, MA 02109  Ph. (617) 345-9000
50 Kennedy Plaza, Suite 1500  Providence, RI 02903  Ph. (401) 274-2000
11 South Main Street, Suite 400  Concord, NH 03301  Ph. (603) 225-4334
185 Asylum Street, CityPlace I, 35th Floor  Hartford, CT 06103  Ph. (860) 725-6200
Ronald D. Ciotti
[email protected]
Direct Dial: (603) 545-6142
Ron’s practice is focused on all aspects of the construction
industry. He represents general contractors, construction
managers, subcontractors, owners/developers, architects and
engineers in construction-related matters, including all
aspects of construction law, contractual disputes, lien work,
bond claims, construction and design defect claims, bid
disputes, litigation, and dispute resolution. Ron has been lead
counsel in numerous New Hampshire bench and jury trials
and, when necessary, has argued his clients' issues before the
New Hampshire Supreme Court. In addition to helping
clients in litigated and disputed matters, he also assists
clients in all aspects of construction projects, from planning,
bid package preparation and contract drafting to securing
bonds and lobbying. Ron has also assisted in the drafting and
redrafting of several construction related bills and legislation.
Ronald D. Ciotti
Recent Publications and Lectureships
• 2008 Annual Construction Industry Forum, AGC of Maine/ABC of Maine, Portland, ME, October,
2008
•Half Moon Seminars – Construction Law for Architects, Engineers and Contractors, September, 2008
•Association for the Advancement of Cost Engineering International (AACEi) – National Webinar Legal Aspects of BIM – July, 2008
•ConsensusDOCS - National Web/Audio Conference – Comparing ConsensusDOCS and AIA Contract
Documents, June, 2008
•West Legal Education - National Webcast – 2007 Changes to AIA Contract Documents, June, 2008
•National Business Institute – National Teleconference – AIA v. ConsensusDOCS: Which Form Should I
Use – May, 2008
•National Business Institute - National Teleconference - 2007 Changes to AIA Contract Documents,
March 2008 (Moderate rebroadcast, August 27, 2008)
•Associated Builders and Contractors, New Hampshire/Vermont Chapter - A comparison of the 2007
AIA A201 and ConsensusDOCS, April, 2008
•Workers Compensation and LEED Breakfast Seminar, Associated General Contractors of New
Hampshire, Inc., April, 2008
•Which Form Should I Use, National Business Institute, AIA v. ConsensusDOCS, May, 2008
•Published article "A Comparison of 2007's New Construction Contract Forms," Construction Resource
Magazine, Winter 2008
Ronald D. Ciotti
Recent Publications and Lectureships, Cont’d.
• Construction Law, Associated General Contractors of New Hampshire, Inc., November 28,
2007
•Essential Construction Contracting Provisions, Local Government Center, November 7, 2007
•Published article "Construction Bidding: Risks and Reward in NH," BusinessNH Magazine,
June 2007
•Published article "Managing Risks Associated With New Hampshire Construction Projects,
Installment #2: Record Keeping and On-Site Dispute Resolution," Awareness in Action, The
Journal of New Hampshire Public Risk Management, Issue #4, 2006
•Published article "Managing Risks Associated With New Hampshire Construction Projects,
Installment #1: Contractual Clauses and Statute of Limitations," in Awareness in Action, The
Journal of New Hampshire Public Risk Management, Issue #3, 2006
•Construction Project Management, National Business Institute, October 31, 2007
•Resolving Construction Disputes, National Business Institute, June 2007
•Legal Issues For Design Professionals, Half Moon Seminars, May 18, 2007
•How to Legally Form a Joint Venture to Bid on Large I-93 Projects, Associated General
Contractors, April 26, 2007
•Managing Complex Construction Law Issues, National Business Institute, February 14, 2007
Ronald D. Ciotti
Recent Publications and Lectureships, Cont’d.
• Shifting the Risk in Construction Contracts, New Hampshire Municipal Association's Annual
Conference, November, 16, 2006
•Managing Construction Projects, Lorman Education Services, June 2006
•Construction Defect Claims, Lorman Education Services, May 2006
•Risk Management for New Construction, Primex, May 23, 2006
•Protecting Yourself in a Changing Market, April 20, 2006
•New Hampshire's New Residential Construction Defect Statute: RSA 359-G, Insurance Industry
Seminar, February 2006
•Roundtable on HB1107 Commercial Construction Contracts, February 2006
•Plan Reading and Scheduling in New Hampshire, Lorman Education Services, October 2005
•Tricks, Traps and Ploys Used in Construction Scheduling in New Hampshire, Lorman Education
Services, August 2005
•New Hampshire Construction Law: Indemnity & Contribution, Insurance Industry Seminar, July
2005
•Show Me The Money: Payment Strategies For Contractors & Sub-Contractors, February 2005
INTRODUCTION
WHY IS IT THAT A DESIGN SYSTEM
AND PROCESS THAT ALL BUT
ELIMINATES CONFLICTS AND
COORDINATION ISSUES HAS
ENTITIES REFUSING TO USE IT DUE
TO INCREASED RISK?
INTRODUCTION
• BECAUSE THE SOFTWARE CAPTURES ALL
DESIGN INFORMATION IN ONE DATABASE, ISSUES
OF:
 DESIGN COORDINATION,
 CONFLICTS, and
 CODE COMPLIANCE,
• CAN BE ADDRESSED DURING DESIGN RATHER
THAN CONSTRUCTION.
INTRODUCTION
• AIA/AGC JOINT COMMITTEE SURVEY:
 75% of US A/E Firms Using 3-D or BIM
•
98% of them using process for renderings and
presentations related to conceptual designs
• Only a little over 33% using BIM as a
construction resource (ex. Clash detection)
INTRODUCTION
• RELUCTANCE OF ARCHITECTS TO USE BIM DUE
TO:
 Inadequate Compensation for investment and
efforts,
 Concerns arising out of perceived changes in
underlying risk, and
 Unwillingness to depart from traditional practice
norms.
THE LEGAL BENEFITS OF USING BIM
• REDUCTION IN RISK AS A RESULT OF
BETTER COORDINATION:
 BIM reduces the risk because the digital model
makes the relation of design information explicit
within the same virtual space.
 Use of the shared information with automatic
conflict and code checking will increase the internal
consistency and compliance of designs.
 The identification and resolution of conflicts occurs
immediately
LEGAL CONTROL OF BIM
• WHO WILL CONTROL THE BIM PROJECT
 Depends Upon the Contract format used
• Design-Bid-Build – Architect
• Design-Build – Contractor
• Project Alliance or Integrated Practice
Agreements – Contractor?
WHO OWNS THE MODEL?
•
Problem:
 Model might contain proprietary information of
• Owner
• A/E
• A/E’s consultants
• Contractor
• Subs
• Fabricators
• Suppliers
• Operator
 Information is integrated to the point of inseparability
 Information is readily accessible to many, if not all, project
participants
 Model itself might be, as an aggregate of designs, an
intellectual property itself
WHO OWNS THE MODEL?
• An Analogy to Ownership of Contract Documents?
 Each specialty still models on their own and then
references their models off of Architect’s model
 Often Contract Documents are still produced in 2D
form
 Same concerns of owner repurposing and
modification presented 20 years ago with the advent
of CAD
 AIA Digital Protocol Documents
WHO OWNS THE MODEL?
• AIA C106-2007 Digital Data Licensing Agreement
 Operates between parties that may not have a
contractual relationship
• Allows transmitting party to collect a license fee
in consideration for use of data
 Grants limited, non-exclusive use of digital data
 Establishes protocols for transfer of data
 Restricts the scope of permitted use
 Can be used to protect one design professional’s
contract drawings from inappropriate use by another
WHO OWNS THE MODEL?
• AIA E201-2007 Digital Data Protocol Exhibit
 An exhibit for incorporation into existing contractual
agreements
• Ideal for incorporation in General Conditions
 Establishes protocols both parties to the contract
will use in transmission of data, controlling:
• Types of data transmitted
• Formats used
• Identities of receiving parties
• Permitted uses
WHO OWNS THE MODEL?
• A New Approach?
 Integrated design is moving away from
 BIM Model requires specialized technology skill set
to organize and administer
 Virtual building process creates new responsibilities
for the A/E
• Perhaps greater responsibilities require more
control over design
RISKS ASSOCIATED WITH BIM
• PERCEIVED RISK TO THE A/E:
 Assuming significant risk by:
• Coordinating the Model, and
• Providing access to the Model
 Vicarious liability due to assumed responsibility of
the design elements provided by:
• Independent Consultants and Unlicensed
Designers:
– Specialty Subcontractors
– Manufacturers
RISKS ASSOCIATED WITH BIM
• RISK TO THE A/E:






Inaccurate Design Models
Models Fail to Incorporate Relevant Data
Design Models Vary From Contract Documents
Design Models are Late
Responsibility for Subsequent Misuse of the Model
Responsibility for the Error or Omission of a
Subsequent User
 Responsibility for the Incorporation of Improper
Design Data Into the Model by a Subsequent User
RISKS ASSOCIATED WITH BIM
• CONTRACTORS LESS RISK ADVERSE THAN
ARCHITECTS – EMBRACE USING BIM
 Using BIM in Shop Drawing Process
 Using BIM for Clash Detection
 AGC first to establish a comprehensive BIM website
and established a Building Division BIM Forum
 ConsensusDOCS first to draft BIM Addendum for
Form Contract Series (AGC endorsed)
PRESENT USE OF BIM
• CONTRACTOR’S USE BIM FOR:
 Preparation and Review of Shop Drawings
 Clash Detection
• Performed in agreement with designers who provide
a digital model (or 2-D documents) with the
understanding that the subs will generate their own
digital models for coordination.
• This process is undertaken with a written protocol
outlining the permitted use of the design information.
PRESENT USE OF BIM
• PROTOCOL TO CONTROL RELATIONSHIP:
 A Contractor acknowledgment that:
• There is no warranty of accuracy of the digital
models received from the Architect
• Models provided at Contractor’s risk
 During Construction Phase – Contractor may
assume control over model to facilitate discharge of
its subcontractors’ obligations, means and methods.
THE BIM CONTRACT MECHANISM
• POSSIBLE CONTRACTING MECHANISMS:
 Design-Bid-Build
 Design-Build
 Project Alliance Agreement/Integrated Practice
 Integrated Practice
THE BIM CONTRACT MECHANISM
• DESIGN-BUILD:
 Fits well with the collaboration inherent in BIM
 Design-Build, even without BIM, is on the rise
 2005 – 40% of all non-residential construction in the
US was Design-Build (DBIA)
 2015 – Estimated to be 50%
THE BIM CONTRACT MECHANISM
• DESIGN-BUILD:
 Communication and Collaboration is the heart of
Design-Build and makes it perfectly suited to be the
contract vehicle for BIM
 Risk inherent in Design-Build:
• Design-Builder is liable for defective Project-related
conditions irrespective of whether the Project was
designed in accordance with industry standards or
whether the work was performed in accordance with
the plans and specs.
 PROBLEM – Not Architect controlled
THE BIM CONTRACT MECHANISM
• DESIGN-BID-BUILD:
 Is a Linear Process
 BIM intended to be highly collaborative from the
earliest stages of the Project
 Very difficult to use BIM in this contract process
THE BIM CONTRACT MECHANISM
•
PROJECT ALLIANCE AGREEMENT:
 Participants assume responsibility for agreed project
performance
 Individual profit and losses are determined by the team’s
success in meeting Project goals (not based on individual
performance)
 Shared opportunities and responsibilities allign the parties’
interests and provide incentive for collaborative efforts.
 All decisions must be unanimous
 Disputes are resolved without litigation and within the
Alliance
 Compensation is determined on an open-book basis
THE BIM CONTRACT MECHANISM
• PROJECT ALLIANCE AGREEMENT:
 Due to its collaborative nature, it is an excellent
contracting vehicle for BIM
THE BIM CONTRACT MECHANISM
• INTEGRATED PRACTICE:
 Will drive changes to contracts in order to facilitate
working in teams, sharing information and fairly
allocating liability risk, compensation, and
responsibility
 Excellent contracting vehicle for BIM
TYPICAL CONTRACTUAL
PROVISIONS FOR USE WITH BIM
• CONTRACTOR:
 Architect and its consultants must create copies of
digital model files available to the Contractor in
digital form for purposes of:
• Building area and volume computations
• Determination of quantity of components and
volumes of materials or assemblies necessary for the
completion of the Work
• Clash detection of architectural elements, structural
elements, and mechancial and piping systems
• Determination of construction sequencing and
logistics
TYPICAL CONTRACTUAL
PROVISIONS FOR USE WITH BIM
• CONTRACTOR:
 Mandate that the design models be consistent with
the hard copy plans and specifications
 Entitled to rely on the information in the digital
model
TYPICAL CONTRACTUAL
PROVISIONS FOR USE WITH BIM
• ARCHITECT:
 Design model will be issued to the Contractor with
the understanding that:
• The design models are not construction documents
or contract documents
• There is no warranty of accuracy of the digital models
received from the Architect
• Models provided at Contractor’s risk
• The design models are to be used for coordination
purposes
THE LEGAL BENEFITS OF USING
BIM
• REDUCTION IN RISK AS A RESULT OF
BETTER COORDINATION:
 Reduces changes as a result of almost
eliminating conflicts:
• Contractor, Designers and Subcontractors
check for 3-D clashes in advance of
construction.
• Design reviews and clash-review meetings
bring all parties together to solve problems.
LEGAL RESPONSIBILITIES WHEN
USING BIM
• ARCHITECT:
 TRADITIONALLY:
• Liability to the Owner has been measured by
the deviation from the prescribed standard of
care
• Law traditionally required the exercise of that
skill and judgment which can be reasonably
expected from similarly situated professionals.
LEGAL RESPONSIBILITIES WHEN
USING BIM
• ARCHITECTS:
 UNDER BIM:
• Implementation of BIM on a widespread scale
by “similarly situated professionals” may, result
in a heightened level of professional liability for
uncaught errors or omissions for the design
professional who does not use BIM or who fails
to use it properly.
LEGAL RESPONSIBILITIES WHEN
USING BIM
• ARCHITECT:
 The Architect who contractes to provide overall
design services to an owner has derivative
responsibility for the errors of a consultant.
• In the BIM context, if the architect receives
design documents from a consultant or if the
design consultant incorporates its digital design
into a master design model, the Architect has a
duty to question and review the documents or
digital design received.
LEGAL RESPONSIBILITIES WHEN
USING BIM
• ARCHITECT:
 The Architect is not immune from liability as a
consequence of error or omission in project shop
drawings.
• Architect has responsibility for design aspects of shop
drawings and should not be relieved of such
responsibility because design information is
digitalized by a third-party into the model.
• To the extent that critical aspects of the design are
delegated to other to perform, the designer retains
control and responsibility over the design through its
review and approval of the delegated work.
LEGAL RESPONSIBILITIES WHEN
USING BIM
• CONTRACTORS:
 Reduces the Contractors chances of success when
invoking the defense of inaccurate or inadequate
plans and specifications in claims by the Owner
 Reduces the Contractors ability to recover from the
Owner damages caused by inadequate design.
LEGAL RESPONSIBILITIES WHEN
USING BIM
• CONTRACTORS:
 THE SPEARIN DOCTRINE:
• If the Contractor is bound to build according to
plans and specifications prepared by the
Owner, the Contractor will not be responsible
for the consequences of defects in the plans
and specifications
– The Contractor may assume that the plans and
specifications provided are adequate and
accurate
LEGAL RESPONSIBILITIES WHEN
USING BIM
• CONTRACTORS:
 THE SPEARIN DOCTRINE:
• Has been followed in virtually every jurisdiction
and applied to both public and private
construction
• EXCEPTION – The Spearin Doctrine does not
extend to Performance Specifications which
merely set forth an objective without specifying
the method of obtaining the objective.
LEGAL RESPONSIBILITIES WHEN
USING BIM
• CONTRACTORS:
 In a Design-Build setting, the principal exception to
the Spearin Doctrine, that the Contractor was
working to performance specifications, is invoked.
• Louisiana Supreme Court ruled, that when
plans and specifications were prepared by the
Contractor, the Contractor cannot escape
responsibility for the defects by taking the
position that the defect was in the specifications
and not the work since the Contractor is
responsible for both.
LEGAL RESPONSIBILITIES WHEN
USING BIM
• CONTRACTORS:
 In the BIM context:
• The Spearin Doctrine may still be invoked when
the information parameters provided to the
Design-Builder by the Owner, and upon which
the Design-Builder’s design is predicated,
proves to be defective or deficient.
– Design-Builder has a right to rely on the Owner’s
information.
LEGAL RESPONSIBILITIES WHEN
USING BIM
• CONTRACTORS:
 Using Design-Bid Contracting Vehicle:
• Should have Spearin Doctrine defense and
remedy regarding design deficiencies
• However, BIM requires full participation by the
Contractor in reviewing the design model early
in the design process
LEGAL RESPONSIBILITIES WHEN
USING BIM
• CONTRACTORS:
 BIM participation by the Contractor should lead to
preconstruction discovery and correction of certain design
errors
• Thus, the Contractor reduces its need to attempt to
invoke the Spearin Doctrine
• The right of the Contractor who participates in BIM to
invoke the Spearin Doctrine involves an analysis of
whether an error is latent or should be considered
patent.
• The threshold for a Contractor to invoke the Spearin
Doctrine in a BIM context will be very high
LEGAL RESPONSIBILITIES WHEN
USING BIM
• CONTRACTORS:
 The ability of a Contractor to claim detrimental
reliance on the design has increased with the
electronic sharing of information.
 A new paradigm seems to be allowing the
Contractors to claim, against the design firm
involved, that the Contractor is an intended
beneficiary of the design information and therefore
has an absolute right to rely on its accuracy – BIM
may accelerate this trend!
DISCLAIMERS
•
It is common for the Architect to require a disclaimer of
responsibility of the accuracy of the 3-D model
•
The Contractor in turn then disclaims the accuracy of the
construction model when it makes it available to the
Subcontractors
 The Contractor has no reason to provide a warranty of a
construction model of which its accuracy has been
disclaimed.
 However, BIM’s intended use requires a free exchange of
data and the ability to rely on such date when
incorporating into the final model, thus, the disclaimer
process is counter-intuitive to BIM
INSURANCE
• CONTRACTORS PROFESSIONAL LIABILITY
POLICIES
 Contractors who act as Design-Builders or At-Risk
Construction Managers, bound to discharge
performance specifications, are necessarily
engaged in the performance of design services
• As such, the Contractor exposes itself to claims
for design error
INSURANCE
• CONTRACTORS PROFESSIONAL LIABILITY
POLICIES
 A Contractor’s performance of BIM services should
be considered just another potential liability
stemming from performance of professional
services.
• Professional liability carriers continue to make
underwriting decisions based on their comfort
with the financial and other capabilities of the
Contractor
INSURANCE
• ARCHITECTS PROFESSIONAL LIABILITY
POLICIES:
 BIM does not have enough of a case history as an
architectural tool to determine risk
• Carriers have concerns regarding liability which
could attach from the use of shared design over
the Internet, such as BIM.
– There is always a concern of the false
expectations on the part of Owners that can
occur from using BIM
INSURANCE
• SUBCONTRACTORS PROFESSIONAL
LIABILITY POLICIES
 If a Subcontractor commits an error in its design
performance, the Owner will likely assert its claim
against the Contractor, who will then assert a claim
against the Subcontractor.
• Thus, it is imperative, when using BIM, that the
Contractor ensure that the Subcontractor has
obtained and maintained professional liability
coverage.
INSURANCE
• TECHNOLOGY ERRORS AND OMISSIONS
LIABILITY POLICIES
 Inherent in BIM are the following risks:
• Failure to secure computer systems (with resulting
unauthorized access)
• Security breach
• Theft
• Destruction
• Deletion or corruption of electronic data
INSURANCE
• TECHNOLOGY ERRORS AND OMISSIONS
LIAIBILITY POLICIES
 Technology, Errors and Omissions Liability Policies are
now available to cover risks relating to data created and
distributed.
 The coverage of these policies extend to liability risks
related to:
• Programming errors
• System crashes or destruction
• Deletion of the information created in a BIM model or
an a website,
• Risk of loss of intellectual property
• Risk associated with failure to prevent computer virus
transmission between computer systems
AIA: INTEGRATED PROJECT DELIVERY
• Integrated Project Delivery (IPD):
 A project delivery approach that integrates:
•
•
•
•
People
Systems
Business structures
Practices
AIA: INTEGRATED PROJECT DELIVERY
• Integrated Project Delivery (IPD):
 Into a process that collaboratively harnesses
the talents and insights of all participants to:
•
•
•
•
Optimize project results
Increase values to the owner
Reduce waste
Maximize efficiency through all phases of
design, fabrication and construction.
AIA: INTEGRATED PROJECT DELIVERY
• IPD requires preconstruction participation in the
modeling and virtual construction process by
 Design professionals
 General and sub contractors
 The owner
• This participation extends beyond the traditional
contractual roles and scopes of parties
 Design-bid-build
 Design-build
 Construction Management
• To create new roles for a new project delivery
option, the AIA has created 2 new document sets
AIA: INTEGRATED PROJECT DELIVERY
• Traditional/“Transitional” Set
 A295-2008: General Conditions of the Contract for
Integrated Project Delivery
 B195-2008: Standard Form of Agreement Between
Owner and Architect for Integrated Project Delivery
 A195-2008: Standard Form of Agreement Between
Owner and Contractor for Integrated Project
Delivery
 GMP Amendment to A195-2008
• Radical/”Single Purpose Entity” Set
 C195-2008: Standard Form Single Purpose Entity
Agreement for Integrated Project Delivery
AIA: INTEGRATED PROJECT DELIVERY
• Traditional/“Transitional” Set
 Familiar structures
• Normal provisions for termination, suspension
of work, rights to intellectual property
 Payment sums and timings are bifurcated for
preconstruction and construction phases of project
 Agreement documents do not scope the
relationships and responsibilities between Owner,
Architect/Engineer and Contractor
 Scoping and responsibilities for all three parties
exists in the A295 General Conditions document
AIA: INTEGRATED PROJECT DELIVERY
• Unlike A201 General Conditions, A295 General
Conditions sets out rights and duties by phase of
activities, not parties
• 6 Project Phases:
 Conceptualization
 Criteria Design
 Detailed Design
 Implementation Documents
 Construction
 Closeout
• First 4 Project Phases are “Preconstruction”
AIA: INTEGRATED PROJECT DELIVERY
• Conceptualization Phase:
 Architect/Engineer, Owner, Contractor, and key
Subs form project team
 A/E and Contractor form a Project Schedule with
Owner, including dates for
• Design progress
• Contractor’s cost estimates
• Early procurement of key materials
• Project delivery date
 Project team also makes major project delivery
decisions, like deciding to fast-track
AIA: INTEGRATED PROJECT DELIVERY
• Criteria Design Phase
 Architect/Engineer develops Criteria Design
Documents
 Criteria Design Documentss include initial sections
and elevations and considers environmentally
responsible design
 Owner’s program, budget and schedule inform
decisions
 Contractor acts as liaison with subs and suppliers
 Cost estimate and schedule get updated
 Initial use of BIM model
AIA: INTEGRATED PROJECT DELIVERY
• Detailed Design Phase
 A/E creates drawings and updates model to fix and
describe all major components
 Includes M/E/P systems
 Contractor updates cost estimate and schedule and
begins to plan construction process
 Owner approves design, cost estimate and
schedule
 Contractor prepares and submits a “Guaranteed
Maximum Price Proposal”
AIA: INTEGRATED PROJECT DELIVERY
• Implementation Documents Phase
 Following Owner’s approval, A/E uses Proposal to
finalize BIM model
 Model includes shop drawing and submittal
information, as well as updates for agreed
substitutions
 Contractor coordinates final pricing with subs and
suppliers
 Design is submitted for permitting
AIA: INTEGRATED PROJECT DELIVERY
• Construction Phase
 Substantially similar to normal A201 General
Conditions
 Same “cost of work” descriptions as most AIA
documents
AIA: INTEGRATED PROJECT DELIVERY
• Notable differences between A201 and A295 General
Conditions:
 No Implied Warranty of Fitness regarding design
adequacy
• Because Contractor is active in and
compensated for development of the design,
Contractor carries the liability for
constructability issues
 Consolidated Dispute Resolution
• Rather than having Owner-Contractor and
Owner-A/E disputes, A295 provides for threeparty consolidated proceedings stemming from
a single General Conditions Document
AIA: INTEGRATED PROJECT DELIVERY
• C195: The Single Purpose Entity
 Radical approach to integration
 Owner, A/E and CM form a Limited Liability
Company (LLC)
• Key subcontractors and specialists would also
be invited members
 The Company would have separate contracts with
Owner, A/E and CM to allow for licensing issues
 Unlike traditional project delivery, The Company
would have direct contracts with all subs and
suppliers
 Same 6 phases as “transitional” A295 process
AIA: INTEGRATED PROJECT DELIVERY
•
•
Governing Board
 One member from each Company member, except Owner
who appoints a simple majority
 Most decisions require unanimity of Governing Board
 Disputes begin with Governing Board, then negotiation
between members, then proceed to binding arbitration
Dispute resolution
 No litigation is possible between members of the Company
except for “willful misconduct”
 Parties becomes less focused on litigation posture and
more goal-oriented and cooperative
 Creates incentives to aid mitigation of other parties’ errors
AIA: INTEGRATED PROJECT DELIVERY
•
•
A New Approach to Compensation and Profit
 Owner sets goals (could be budgets, schedule, quality,
performance, O&M, environmental, etc.)
 A/E and CM earn some of their profit by achieving the set
goals
“Target Cost”
 Serves as a substitute for Guaranteed Maximum Price
 The sum of the estimated cost of design and construction,
the total of goal-oriented payments, and a contingency
 A/E and CM are reimbursed for costs and paid for
achieving goals, but not beyond the Target Cost
 If actual cost is less than Target Cost, then A/E, CM and
Owner divide the difference according to a predetermined
formula
AIA: INTEGRATED PROJECT DELIVERY
• Three possible scenarios of Target Cost
 Actual Cost < Target Cost
• Difference is divided up between Owner, A/E
and CM
 Actual Cost = Target Cost
• A/E and CM get reimbursed for costs and
goals, but no additional profit
 Actual Cost > Target Cost
• Owner only pays Target Cost
AIA: INTEGRATED PROJECT DELIVERY
• Advantages to Owner:
 Quick and economic resolution of disputes
 More efficient construction and delivery
 Higher quality claims
• Disadvantages to Owner:
 Higher initial cost of project
• Poor for lowest cost/“flip” projects
• Advantages to A/E and CM:
 Lower risk of claims with possibility owner builds
that lowered risk into a higher “Target Cost”
CONSENSUSDOCS BIM
ADDENDUM
• GENERAL PRINCIPLES:
 Addendum is envisioned to be used with traditional
delivery methods (especially with GMP)
 Does not require a restructuring of contractual
relationships
 Is not intended to create privity of contract between parties
that did not have privity under prior contracts
 A/E is the person responsible and in charge of the Project
 Participation in the contribution to a Model shall not
constitute the performance of design services
 Design model is not intended to provide the level of detail
needed to extract material or object quantities
 Design model takes precedence
 Owner chooses Information Manager (IM)
 Addendum takes precedence over Governing Contract
CONSENSUSDOCS BIM
ADDENDUM
• DEFINITIONS:
 Federated Model – Consisting of linked but distinct
component models
 Design Model – customarily expressed by and A/E
in two-dimensional Construction Documents.
 Full Design Model – Consisting of coordinated
structural, architectural, MEP and other design
models
 Construction Model – Contains the equivalent of
shop drawings and other information useful for
construction.
 Project Model – Federation of a Full Design Model
and one or more Construction Models
CONSENSUSDOCS BIM
ADDENDUM
•
INFORMATION MANAGEMENT
 Owner selects an Information Manager (IM)
• IM’s role is as follows:
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Create, delete, modify and maintain user accounts
Assign, delete and modify access rights to users
Apply access controls
Establish and maintain encryption measures
Record information regarding each data entry
Backup and restore data
Run information system scans
Maintain and monitor systems logs
Install patches to close documented vulnerabilities
Document and report any incident relating to the Model
Provide authorized users with access instructions
Respond to requests for assistance in maintaining
access
CONSENSUSDOCS BIM
ADDENDUM
• BIM EXECUTION PLAN (page 1)
 Shall address the following elements:
• Contact information for each Project Participant
• Identification of what Models are to be created
• Identification of what Models will NOT constitutue
Contract Documents
• Identification of spatial portions or areas of the
Project to be modeled in each Model
• Required level of detail at various Project milestones
• Schedule of initial delivery
• Schedule of updating each Model
• Procedures and protocols for submission for approval
of Models
• Contributor’s dimensional accuracy representation
CONSENSUSDOCS BIM
ADDENDUM
• BIM EXECUTION PLAN (page 2)
 Establish common coordinate system
 Establish conventions as to units
 Conventions for defining critical dimensions and critical
Model content
 File format to be used
 File naming and object-naming conventions to be used
 File structure to be used
 Software to be utilized
 Measures needed to achieve interoperability
 2D reference drawings
 RFI process, response protocol and timing, incorporation
into BIM model
CONSENSUSDOCS BIM
ADDENDUM
• BIM EXECUTION PLAN (page 3)
 Change Order process – incorporation into Model
 Schedule of BIM development, coordination and clash
detection meetings
 Engagement of the IM these processes
 Utilization of a Project BIM website
 Procedures and protocols for field changes through asbuilt Project Model
 Specification of Project close-out and final deliverables
 Any changes or additions to the Governing Contract
related to BIM-related compensation and costs
CONSENSUSDOCS BIM
ADDENDUM
• RISK ALLOCATION
 Each party is responsible for any contribution that it
makes to a Model or that arises from access to that
Model
 Each party shall procure and maintain insurance
that covers all of its contributions or intended
contributions.
CONSENSUSDOCS BIM
ADDENDUM
• INTELLECTUAL PROPERTY RIGHTS IN MODELS
 Each party warrants to the other parties that it is the
owner of all copyrights in all of that party’s
contributions.
 Each party grants to each other party:
• A limited, non-exclusive license to reproduce,
distribute, display, or otherwise use that party’s
contributions for purposes of this Project only;
• A limited, non-exclusive license to . . .use for
purposes of the Project only the contribution of other
Project Participants
• Right to grant an identical sublicense to any other
Project Participant
• A limited . . .use any Model containing such
contributions for the purpose of carrying out its duties
CONSENSUSDOCS BIM
ADDENDUM
•
INTELLECTUAL PROPERTY RIGHTS IN MODELS
 Owner’s entitlement to the use of the Full Design Model
after completion of the Project shall be governed by the
Contract between the Owner and A/E.
 After completion of the Project, the non-exclusive license
shall be limited to keeping an archival copy of the Projectrelated contributions.
 Parties providing contributions to a Model shall not be
deemed to be co-authors in the contributions of other
Project Participants.
BONDING
• PERFORMANCE BONDS
 Sureties do not want to provide performance bonds which
incorporate design risks
• If the Contractor’s input of information into the
operational database of the BIM model is determined
to constitute design, there are potential ramifications
to the performance bond surety
• Any work product that integrates design and
construction issues, such as BIM, may result in
unanticipated consequences to the performance bond
surety
BONDING
• PERFORMANCE BONDS
 A surety is still obligated to answer for the defaulted
Contractor and in certain scenarios, such as BIM,
obligations for design performance is to be
envisioned.
• A surety issuing a performance bond
conditioned upon a Design-Builder or BIM
based contract, may effectively assume
obligations not only for the construction but also
for the design, thus substantially increasing its
exposure.
BONDING
• PERFORMANCE BONDS
 Absent specific performance bond language
exculpating the surety from damages resulting from
defective design, the performance bond surety will
find it difficult to defend itself from liability confined
to the construction portion of a design-build or BIM
related contract.
QUESTIONS
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50 Kennedy Plaza, Suite 1500  Providence, RI 02903  Ph. (401) 274-2000
11 South Main Street, Suite 400  Concord, NH 03301  Ph. (603) 225-4334
185 Asylum Street, CityPlace I, 35th Floor  Hartford, CT 06103  Ph. (860) 725-6200