By Michael Avramides
I think of myself as a fairly responsible professional, which means I want to know what responsibilities I can manage. So, instead of “passing the buck,” I gave my full attention to the latest 90-minute webinar from WPL Publishing Inc., “The Legal Risks of BIM (Building Information Modeling) -- Real or Imagined?”, presented by Michael Vardaro, a partner with Zetlin & De Chiara, a firm specializing in construction law.
Vardaro gave me two truly great insights. Along with what you would expect from most attorneys (and Vardaro is quite BIM-fluent to be sure), the “team” of owners, designers,
and builders is expected to rely on written agreements such as the American Institute of Architects’ (AIA) E202-2008 BIM Exhibit or the ConsensusDOCS 301 BIM Addendum, either of which may be a starting point.
But first, BIM at its worst. The inevitable topic de jour was “The World’s First BIM Lawsuit Ever,” (see Engineering News Record’s “A Cautionary Digital Tale of Virtual Design and Construction,” published May 23, 2011). Briefly, an unidentified life-sciences building project hit a brick wall. Or more precisely -- if less kindly -- how 10 pounds of mechanical equipment couldn't be shoved into a five-pound plenum. The spotlight is on when it was known. The design team used BIM, but the subcontractor did not. This defies the logic of BIM theory, if not construction reality, and has inspired a rather large -- and equally uninformed -- group of bloggers.
Our attorney’s perspective suggests it may not have been a BIM issue, which appeared to be the assumption at first glance, as much as a communication breakdown. Clearly, the jury is still out, as the saying goes (assuming this gets resolved through a jury trial). So let’s keep it in perspective and attempt to learn from whatever mistakes occurred. The “takeaway” is really important, and regardless of the trial’s outcome, we must conclude that the “standard of care” has shifted. It’s less about BIM and how we assume information should be processed. Rather, do all of our expectations align, and are they realistic?
This was the first insight that I previously hadn’t given much thought to. But think about how you would explain not being “up to speed” when the technology already exists, and as it becomes commonplace, or as older ones fade. For my simple example, take the fax machine. We all have them and they were the “standard” at one time and provided the (legally correct sounding) “facsimile.” But what would you tell your client, your colleagues, or -- like the hapless newsworthy project team – even a jury, if that older technology failed? Can you imagine reporting that the fax machine ran out of paper? And in this case, whose expectations were really out of whack, the sender’s or the recipient’s? In my example, it seems that neither one acknowledged that a “standard of care” should apply in receiving or sending. The expectations of both parties were not “up to speed” or realistic.
So, if we still have an “F” on our letterhead with a phone number attached, we may want to reconsider where we are in the information age, even though we see fewer faxes and although we are still probably in the majority by having them around. Caveat utilitor. The caution is not for the buyer but the user and not just the fax machine but other receding technologies. Just remember, the “standard of care” is moving up because the way we manage information is vastly improving. The lesson is this: we are expected to shift to a higher “standard of care;” it’s no longer optional.
The second game-changer, and truly encouraging, was anecdotal. An owner, design team, and builder were presented anonymously by our webinar's host. This “Team X” purportedly has been living out our best hopes for BIM. Their outstanding achievement is that they’ve designated a place where all parties could digitally coexist, The Room. This is in practice what many of us have been preaching. Provide a centralized location where the designer, contractor, and their subcontractors could all agree on input. Imagine subcontractors actually having their shop drawings “BIMed” from their direct input, alongside the mechanical, electrical, and plumbing designer? Here the general contractor can bring in subcontractors that may not have BIM fluency but nonetheless become part of the team, among other benefits.
Of note, it was also emphasized that a lot of trust was given on the part of the owner, and apparently it is paying off so far. Stay tuned, because this kind of news eventually will prove more valuable than the current disappointing headlines mentioned earlier. It may make a number of people nervous to think about how risk and liability get shared; but on the other hand, it may put other people in a position to recognize how and where to assign and take responsibility -- know where the buck stops -- so that all of us will look as good as we know we can be. Isn’t that the responsible thing to do?
Michael Avramides, AIA
BIM Consultant and Architect