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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, City. Place I, 35 th Floor Hartford, CT 06103 Ph. (860) 725 -6200
Ronald D. Ciotti [email protected] com 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 • Consensus. DOCS - National Web/Audio Conference – Comparing Consensus. DOCS 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. Consensus. DOCS: 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 A 201 and Consensus. DOCS, 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. Consensus. DOCS, 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, " Business. NH 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 HB 1107 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: Ø DESIGN COORDINATION, Ø CONFLICTS, and Ø CODE COMPLIANCE, • CAN BE ADDRESSED DURING DESIGN RATHER THAN CONSTRUCTION.
INTRODUCTION • AIA/AGC JOINT COMMITTEE SURVEY: Ø 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: Ø Inadequate Compensation for investment and efforts, Ø Concerns arising out of perceived changes in underlying risk, and Ø Unwillingness to depart from traditional practice norms.
THE LEGAL BENEFITS OF USING BIM • REDUCTION IN RISK AS A RESULT OF BETTER COORDINATION: Ø BIM reduces the risk because the digital model makes the relation of design information explicit within the same virtual space. Ø Use of the shared information with automatic conflict and code checking will increase the internal consistency and compliance of designs. Ø The identification and resolution of conflicts occurs immediately
LEGAL CONTROL OF BIM • WHO WILL CONTROL THE BIM PROJECT Ø 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: Ø Model might contain proprietary information of • Owner • A/E’s consultants • Contractor • Subs • Fabricators • Suppliers • Operator Ø Information is integrated to the point of inseparability Ø Information is readily accessible to many, if not all, project participants Ø Model itself might be, as an aggregate of designs, an intellectual property itself
WHO OWNS THE MODEL? • An Analogy to Ownership of Contract Documents? Ø Each specialty still models on their own and then references their models off of Architect’s model Ø Often Contract Documents are still produced in 2 D form Ø Same concerns of owner repurposing and modification presented 20 years ago with the advent of CAD Ø AIA Digital Protocol Documents
WHO OWNS THE MODEL? • AIA C 106 -2007 Digital Data Licensing Agreement Ø Operates between parties that may not have a contractual relationship • Allows transmitting party to collect a license fee in consideration for use of data Ø Grants limited, non-exclusive use of digital data Ø Establishes protocols for transfer of data Ø Restricts the scope of permitted use Ø Can be used to protect one design professional’s contract drawings from inappropriate use by another
WHO OWNS THE MODEL? • AIA E 201 -2007 Digital Data Protocol Exhibit Ø An exhibit for incorporation into existing contractual agreements • Ideal for incorporation in General Conditions Ø 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? Ø Integrated design is moving away from Ø BIM Model requires specialized technology skill set to organize and administer Ø 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: Ø Assuming significant risk by: • Coordinating the Model, and • Providing access to the Model Ø 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: Ø Ø Ø Inaccurate Design 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 Ø 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 Ø Using BIM in Shop Drawing Process Ø Using BIM for Clash Detection Ø AGC first to establish a comprehensive BIM website and established a Building Division BIM Forum Ø Consensus. DOCS first to draft BIM Addendum for Form Contract Series (AGC endorsed)
PRESENT USE OF BIM • CONTRACTOR’S USE BIM FOR: Ø Preparation and Review of Shop Drawings Ø 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: Ø A Contractor acknowledgment that: • There is no warranty of accuracy of the digital models received from the Architect • Models provided at Contractor’s risk Ø 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: Ø Design-Bid-Build Ø Design-Build Ø Project Alliance Agreement/Integrated Practice Ø Integrated Practice
THE BIM CONTRACT MECHANISM • DESIGN-BUILD: Ø Fits well with the collaboration inherent in BIM Ø Design-Build, even without BIM, is on the rise Ø 2005 – 40% of all non-residential construction in the US was Design-Build (DBIA) Ø 2015 – Estimated to be 50%
THE BIM CONTRACT MECHANISM • DESIGN-BUILD: Ø Communication and Collaboration is the heart of Design-Build and makes it perfectly suited to be the contract vehicle for BIM Ø 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. Ø PROBLEM – Not Architect controlled
THE BIM CONTRACT MECHANISM • DESIGN-BID-BUILD: Ø Is a Linear Process Ø BIM intended to be highly collaborative from the earliest stages of the Project Ø Very difficult to use BIM in this contract process
THE BIM CONTRACT MECHANISM • PROJECT ALLIANCE AGREEMENT: Ø Participants assume responsibility for agreed project performance Ø Individual profit and losses are determined by the team’s success in meeting Project goals (not based on individual performance) Ø Shared opportunities and responsibilities allign the parties’ interests and provide incentive for collaborative efforts. Ø All decisions must be unanimous Ø Disputes are resolved without litigation and within the Alliance Ø Compensation is determined on an open-book basis
THE BIM CONTRACT MECHANISM • PROJECT ALLIANCE AGREEMENT: Ø Due to its collaborative nature, it is an excellent contracting vehicle for BIM
THE BIM CONTRACT MECHANISM • INTEGRATED PRACTICE: Ø Will drive changes to contracts in order to facilitate working in teams, sharing information and fairly allocating liability risk, compensation, and responsibility Ø Excellent contracting vehicle for BIM
TYPICAL CONTRACTUAL PROVISIONS FOR USE WITH BIM • CONTRACTOR: Ø 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: Ø Mandate that the design models be consistent with the hard copy plans and specifications Ø Entitled to rely on the information in the digital model
TYPICAL CONTRACTUAL PROVISIONS FOR USE WITH BIM • ARCHITECT: Ø 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: Ø 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: Ø 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: Ø 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: Ø 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: Ø 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: Ø Reduces the Contractors chances of success when invoking the defense of inaccurate or inadequate plans and specifications in claims by the Owner Ø Reduces the Contractors ability to recover from the Owner damages caused by inadequate design.
LEGAL RESPONSIBILITIES WHEN USING BIM • CONTRACTORS: Ø 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: Ø 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: Ø 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: Ø 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: Ø 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: Ø 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: Ø The ability of a Contractor to claim detrimental reliance on the design has increased with the electronic sharing of information. Ø 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 Ø The Contractor has no reason to provide a warranty of a construction model of which its accuracy has been disclaimed. Ø 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 Ø 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 Ø 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: Ø 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 Ø 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 Ø 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 Ø Technology, Errors and Omissions Liability Policies are now available to cover risks relating to data created and distributed. Ø 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): Ø A project delivery approach that integrates: • • People Systems Business structures Practices
AIA: INTEGRATED PROJECT DELIVERY • Integrated Project Delivery (IPD): Ø 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 Ø Design professionals Ø General and sub contractors Ø The owner • This participation extends beyond the traditional contractual roles and scopes of parties Ø Design-bid-build Ø Design-build Ø 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 Ø A 295 -2008: General Conditions of the Contract for Integrated Project Delivery Ø B 195 -2008: Standard Form of Agreement Between Owner and Architect for Integrated Project Delivery Ø A 195 -2008: Standard Form of Agreement Between Owner and Contractor for Integrated Project Delivery Ø GMP Amendment to A 195 -2008 • Radical/”Single Purpose Entity” Set Ø C 195 -2008: Standard Form Single Purpose Entity Agreement for Integrated Project Delivery
AIA: INTEGRATED PROJECT DELIVERY • Traditional/“Transitional” Set Ø Familiar structures • Normal provisions for termination, suspension of work, rights to intellectual property Ø Payment sums and timings are bifurcated for preconstruction and construction phases of project Ø Agreement documents do not scope the relationships and responsibilities between Owner, Architect/Engineer and Contractor Ø Scoping and responsibilities for all three parties exists in the A 295 General Conditions document
AIA: INTEGRATED PROJECT DELIVERY • Unlike A 201 General Conditions, A 295 General Conditions sets out rights and duties by phase of activities, not parties • 6 Project Phases: Ø Conceptualization Ø Criteria Design Ø Detailed Design Ø Implementation Documents Ø Construction Ø Closeout • First 4 Project Phases are “Preconstruction”
AIA: INTEGRATED PROJECT DELIVERY • Conceptualization Phase: Ø Architect/Engineer, Owner, Contractor, and key Subs form project team Ø 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 Ø Project team also makes major project delivery decisions, like deciding to fast-track
AIA: INTEGRATED PROJECT DELIVERY • Criteria Design Phase Ø Architect/Engineer develops Criteria Design Documents Ø Criteria Design Documentss include initial sections and elevations and considers environmentally responsible design Ø Owner’s program, budget and schedule inform decisions Ø Contractor acts as liaison with subs and suppliers Ø Cost estimate and schedule get updated Ø Initial use of BIM model
AIA: INTEGRATED PROJECT DELIVERY • Detailed Design Phase Ø A/E creates drawings and updates model to fix and describe all major components Ø Includes M/E/P systems Ø Contractor updates cost estimate and schedule and begins to plan construction process Ø Owner approves design, cost estimate and schedule Ø Contractor prepares and submits a “Guaranteed Maximum Price Proposal”
AIA: INTEGRATED PROJECT DELIVERY • Implementation Documents Phase Ø Following Owner’s approval, A/E uses Proposal to finalize BIM model Ø Model includes shop drawing and submittal information, as well as updates for agreed substitutions Ø Contractor coordinates final pricing with subs and suppliers Ø Design is submitted for permitting
AIA: INTEGRATED PROJECT DELIVERY • Construction Phase Ø Substantially similar to normal A 201 General Conditions Ø Same “cost of work” descriptions as most AIA documents
AIA: INTEGRATED PROJECT DELIVERY • Notable differences between A 201 and A 295 General Conditions: Ø 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 Ø Consolidated Dispute Resolution • Rather than having Owner-Contractor and Owner-A/E disputes, A 295 provides for threeparty consolidated proceedings stemming from a single General Conditions Document
AIA: INTEGRATED PROJECT DELIVERY • C 195: The Single Purpose Entity Ø Radical approach to integration Ø Owner, A/E and CM form a Limited Liability Company (LLC) • Key subcontractors and specialists would also be invited members Ø The Company would have separate contracts with Owner, A/E and CM to allow for licensing issues Ø Unlike traditional project delivery, The Company would have direct contracts with all subs and suppliers Ø Same 6 phases as “transitional” A 295 process
AIA: INTEGRATED PROJECT DELIVERY • • Governing Board Ø One member from each Company member, except Owner who appoints a simple majority Ø Most decisions require unanimity of Governing Board Ø Disputes begin with Governing Board, then negotiation between members, then proceed to binding arbitration Dispute resolution Ø No litigation is possible between members of the Company except for “willful misconduct” Ø Parties becomes less focused on litigation posture and more goal-oriented and cooperative Ø Creates incentives to aid mitigation of other parties’ errors
AIA: INTEGRATED PROJECT DELIVERY • • A New Approach to Compensation and Profit Ø Owner sets goals (could be budgets, schedule, quality, performance, O&M, environmental, etc. ) Ø A/E and CM earn some of their profit by achieving the set goals “Target Cost” Ø Serves as a substitute for Guaranteed Maximum Price Ø The sum of the estimated cost of design and construction, the total of goal-oriented payments, and a contingency Ø A/E and CM are reimbursed for costs and paid for achieving goals, but not beyond the Target Cost Ø 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 Ø Actual Cost < Target Cost • Difference is divided up between Owner, A/E and CM Ø Actual Cost = Target Cost • A/E and CM get reimbursed for costs and goals, but no additional profit Ø Actual Cost > Target Cost • Owner only pays Target Cost
AIA: INTEGRATED PROJECT DELIVERY • Advantages to Owner: Ø Quick and economic resolution of disputes Ø More efficient construction and delivery Ø Higher quality claims • Disadvantages to Owner: Ø Higher initial cost of project • Poor for lowest cost/“flip” projects • Advantages to A/E and CM: Ø Lower risk of claims with possibility owner builds that lowered risk into a higher “Target Cost”
CONSENSUSDOCS BIM ADDENDUM • GENERAL PRINCIPLES: Ø Addendum is envisioned to be used with traditional delivery methods (especially with GMP) Ø Does not require a restructuring of contractual relationships Ø Is not intended to create privity of contract between parties that did not have privity under prior contracts Ø A/E is the person responsible and in charge of the Project Ø Participation in the contribution to a Model shall not constitute the performance of design services Ø Design model is not intended to provide the level of detail needed to extract material or object quantities Ø Design model takes precedence Ø Owner chooses Information Manager (IM) Ø Addendum takes precedence over Governing Contract
CONSENSUSDOCS BIM ADDENDUM • DEFINITIONS: Ø Federated Model – Consisting of linked but distinct component models Ø Design Model – customarily expressed by and A/E in two-dimensional Construction Documents. Ø Full Design Model – Consisting of coordinated structural, architectural, MEP and other design models Ø Construction Model – Contains the equivalent of shop drawings and other information useful for construction. Ø Project Model – Federation of a Full Design Model and one or more Construction Models
CONSENSUSDOCS BIM ADDENDUM • INFORMATION MANAGEMENT Ø Owner selects an Information Manager (IM) • IM’s role is as follows: – – – 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) Ø 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) Ø Establish common coordinate system Ø Establish conventions as to units Ø Conventions for defining critical dimensions and critical Model content Ø File format to be used Ø File naming and object-naming conventions to be used Ø File structure to be used Ø Software to be utilized Ø Measures needed to achieve interoperability Ø 2 D reference drawings Ø RFI process, response protocol and timing, incorporation into BIM model
CONSENSUSDOCS BIM ADDENDUM • BIM EXECUTION PLAN (page 3) Ø Change Order process – incorporation into Model Ø Schedule of BIM development, coordination and clash detection meetings Ø Engagement of the IM these processes Ø Utilization of a Project BIM website Ø Procedures and protocols for field changes through as-built Project Model Ø Specification of Project close-out and final deliverables Ø Any changes or additions to the Governing Contract related to BIM-related compensation and costs
CONSENSUSDOCS BIM ADDENDUM • RISK ALLOCATION Ø Each party is responsible for any contribution that it makes to a Model or that arises from access to that Model Ø Each party shall procure and maintain insurance that covers all of its contributions or intended contributions.
CONSENSUSDOCS BIM ADDENDUM • INTELLECTUAL PROPERTY RIGHTS IN MODELS Ø Each party warrants to the other parties that it is the owner of all copyrights in all of that party’s contributions. Ø 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 Ø 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. Ø After completion of the Project, the non-exclusive license shall be limited to keeping an archival copy of the Projectrelated contributions. Ø Parties providing contributions to a Model shall not be deemed to be co-authors in the contributions of other Project Participants.
BONDING • PERFORMANCE BONDS Ø 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 Ø 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 Ø 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 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, City. Place I, 35 th Floor Hartford, CT 06103 Ph. (860) 725 -6200