Technological Advances in Construction: Building Information Modeling (BIM) and Related Tools

• Author: Carol J. Patterson - Ross J. Altman - Stephen A. Hess - Allen Overcash
• Pages: 809-844

CHAPTER

809

.01 INTROdUCTION

A century ago, designs for a construction project were prepared by hand inking

onto linen or by using a drafting pencil to mark large sheets of paper using a

scaled ruler. Blueprints arrived in the late 1800s. Using lightsensitive sheets to

reproduce hand drawn lines on a blue-colored negative plan page, the blueprints

alleviated the need for creating multiple copies of plans by hand. In turn, these

blueprints were largely replaced in the 1940s by sepia-colored diazo chemical

prints. As reproduction technology continued to evolve, xerographic photocopies

became common in the 1960s. In the mid-1970s, software for computer-assisted

design (CAD) was created, generating electronic two-dimensional (2D) designs

that could be read on a computer and then printed onto paper. Designs created

with CAD software swiftly supplanted hand drawing of plans, particularly on

large commercial projects.

Technological Advances

in Construction: Building

Information Modeling

(BIM) and Related Tools

KIMBERLY A. HURTADO

24

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CONSTRUCTION LAW

810

Most recently, a shift has occurred to the use of more sophisticated

computer design software known as building information modeling (BIM).

Given the speed with which BIM generates three-dimensional (3D) images,

and allows for easy visualization and analysis from initial conceptualization

through decommissioning of a structure, BIM has rapidly gained popularity in

the construction industry.

BIM permits robust collaboration as the project team develops models.

Initially, design professionals can share data with their design consultants as

design models are prepared and analyzed, comparable to 2D design develop-

ment. BIM also allows model review between designers and constructors (typ-

ically, contractors, subcontractors, and, increasingly, vendors/manufacturers)

to coordinate design models electronically with shop and fabrication modeling,

rather than manually overlaying 2D plan sheets to make these comparisons.

The resulting coordinated models are then shared by designers or construc-

tors with their specialty consultants for sustainability, cost, schedule, civil, and

other analyses of models during design development and construction phases.

This kind of analysis is difcult, if not impossible, to accomplish without 3D

model data. Since these collaborations can occur before construction-ready

designs are fully completed, some have raised concerns that legal responsi-

bilities for designs might be impacted, imposing greater risks of liability on

parties participating in these collaborative activities than traditional 2D design

development.

We looked at the Spearin doctrine earlier in this book, which is an owner’s

implied warranty that plans and specications prepared by an architect hired

by the owner and thereafter delivered to a contractor will be t for construc-

tion. Under this doctrine, the owner (rather than the contractor) bears the risk

of the designer’s errors or omissions that impair constructability or yield a

project that does not perform as intended. This common law rule reected

what, at the time, were well-established roles in a design-bid-build construc-

tion process: the owner hired a designer, the designer completed the designs,

and the constructor then built the project from those designs. In that process,

the contractor had little or no input in the design process. Although the con-

tractor bore some design-related obligations, such as pointing out observed

design mistakes and preparing shop drawings, the designer remained respon-

sible for making sure project designs conformed to code requirements and that

the plans and specications were sufcient for the work to be constructed

from them.

As other methods of project delivery have evolved, such as design-build

and integrated project delivery (IPD), they have softened the strict application

of the Spearin Doctrine in some jurisdictions on the basis that they permit

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811Technological Advances in Construction

constructor input during design phase. As a result of these cases, concerns

have been raised that the interactive design process possible with BIM might

further erode Spearin’s comparatively bright-line design responsibilities. For

example, given the greater interaction of constructors during model design

development, concerns have been raised that designs might be modied with-

out informed consent of the authoring designer.

With BIM, constructors can be given the opportunity to participate actively

with designers to resolve conicts between design and shop model data in

joint resolution sessions early in the design process. This can include con-

tractors suggesting design renements that designers then must determine

whether to incorporate into their model. This collaborative process is new

enough that the scope of interactive BIM activities can vary widely from proj-

ect to project. Industry contract forms about BIM describing these collabora-

tions have only recently become commercially available; even more recently,

courts have begun issuing common law rulings related to BIM use.1 As a result

of these factors, standards of care for BIM activities have been slow to emerge.

Nevertheless, since BIM software offers an unparalleled ability to track model

changes, design modications are difcult to make unbeknownst to the origi-

nal authoring party. In addition, during resolution of conicts between design

and shop model contributions, authoring designers still control the nal con-

tent of their own designs and must agree on the solutions implemented to

resolve conicts between the models of others and the authoring designer’s

own model data. And, most important, upon completion of a design model,

the authoring designer still remains responsible to conrm code compliance

and design integrity of their entire model before sealing their design for permit-

ting purposes. Given these considerations, although designers can more eas-

ily collaborate with constructors using this 3D design medium, each party’s

responsibilities for the nal content of their own model data may not be altered

signicantly. Architects and engineers will remain responsible for the content

of their design models, while subcontractors and suppliers will be responsible

for shop, fabrication, and design-build or design-assist systems modeling.

Lawyers likely will be called on to help resolve these issues as BIM use

evolves over the next decade or so. As a result, a competent construction law-

yer will want a working knowledge of BIM technology. Thus, this chapter pro-

vides an overview of basic BIM software and processes, and examines some of

the emerging contractual and other legal issues related to BIM use.

1. See N. Am. Mech., Inc. v. Walsh Constr. Co. II, LLC, 132 F. Supp. 3d 1064 (E.D. Wis. 2015);

3D Imaging Services, LLC v. McLaren, Inc., No. 333100, 2017 WL 3397478 (Mich. Ct. App. Aug.

8, 2017).

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