Will legal issues impede the advancement of building information modeling (BIM)? “They certainly will,” Michael Vardaro, a partner at Zetlin & De Chiara LLP, told construction professionals attending a webinar that WPL Publishing held March 14. “I say that only because lawyers are very skeptical about doing something new. Lawyers, I think, are certainly one of the obstacles to the implementation of BIM. But, as with everybody else, lawyers will come around, and I know that there are a bunch of lawyers out there who are doing a great job in really pushing BIM, and I think that at some point we will get past the obstacles that are holding back BIM -- one of them [being] that building departments typically don’t accept submissions -- and once we do that, I think BIM will be off to the races.”
In addressing attendees of the webinar, entitled “The Legal Risk of BIM -- Real or Imagined?”, Vardaro outlined the following legal issues associated with using BIM: design responsibilities; assumption of risk; software issues; copyright/ownership; standard of care; licensing issues; schedule (4D); cost (5D); shop drawings; coordination; model controls; legal uncertainty; insurance; acceptance by permitting authorities; risk management/sharing; and other issues.
Regarding model controls, Vardaro suggested that certain questions, such as the following, be answered in a contract: Who has the authority to modify the model components?; Who will bear the cost of the model?; and Who will maintain the model? “Who will host the model is something that’s very important, and this is important both in terms of providing access to the model [and] where that model physically resides. If we think about integrated [BIM,] where all of the project participants are putting their information into one model, and let’s say that model goes down, there could be some serious impact to the overall project schedule. Certainly, you would think, or there’s the potential there, that you could delay the project for a day and possibly even more. So, certainly, there’s got to be some thought put into the hosting of the model.” Other model-control issues involve how access is controlled, who inputs data, how changes are tracked, how unauthorized use of stored data is prevented, archiving previous versions, file corruption, communication between models, and data accuracy.
Vardaro stressed that the list of legal issues involving BIM that he provided during the webinar is not comprehensive. “[I]t’s impossible for us to go through, [during a 90-minute webinar,] everything that could happen.”
In concluding his presentation, Vardaro said, “I guess the way that I would describe BIM is that it really can have a huge impact on construction in general, … taking it from the era of the Flintstones and moving it more into the Jetsons era. And in doing that, it’s important to understand these [legal] issues [involving BIM], certainly, in the context of the contract, but then also to follow through with those issues as you work on the project.
“You know, it’s a matter of redefining relationships between your clients and your colleagues and especially internally with people who are working with you or for you on the project. You … really [need to] understand the project delivery method that you’ve chosen and properly formulate it so as to best take advantage of some of the [BIM] benefits that are out there. And then, finally, [it is imperative] to really make sure that you take care of the contract and the insurance components so that you’re not dealing with those issues after the fact."
To inquire about obtaining a recording of the webinar, call WPL Publishing at (301) 765-9525.