Building Information Modeling (“BIM”) is increasingly used within the construction industry by design professionals, contractors, construction managers, and owners. BIM is particularly well suited to Integrated Project Delivery (“IPD”), a project delivery method where project participants strive to work collaboratively to realize mutually beneficial rewards.  To properly achieve the synergies from the BIM/IPD union, project participants need to carefully allocate risks and rewards and document their roles and responsibilities in connection with the project. This article provides an overview of BIM and IPD as well as some of the contractual considerations which project participants should keep in mind when documenting their deal.

What is Building Information Modeling?

BIM is a computer model-based process that assists in the planning, design, construction, and management stages of a project by providing a visual, 3-dimensional representation of the physical and functional characteristics of a construction project. BIM also assists with scheduling and budgeting when dimensions 4 (time) and 5 (cost) are added to the model.

How can Building Information Modeling Benefit Construction Projects?

Proper implementation of BIM can assist the project participants and produce significant benefits including efficiencies in information exchange, cost estimation, funds allocation, clash detection, quality control, coordination between trades, and decreased project delivery time and cost.  For example, during the design phase, design professionals can use BIM to develop and refine their designs and allow the owner to visually solidify its understanding of the project’s design.  BIM can also be used during the design phase to facilitate generation of sequencing and value engineering as well as the initial coordination between project participants. Efficiencies in sequencing and cost estimation are the main benefits provided by use of BIM during the construction phase. In the post-construction phase, BIM can be used by the owner or its agents to assist in project maintenance.

Building Information Modeling and Integrated Project Delivery

BIM can add value in all project delivery methods, but it is particularly effective when an IPD method is employed.  Traditional design delivery methods generally do not involve early participation of the construction team during the design stages.  The design team prepares the construction documents with the owner, and then the owner gives the complete set of drawings and specifications to the contractor. The lack of participation of the construction team during the design stages often increases design inefficiencies, leads to disputes among the project team members, and impacts the completion timeline and projects costs. Further, in traditional delivery methods, the design professionals may be reluctant to share their work product because of liability, intellectual property, and other issues.  The compensation structures in traditional design delivery methods incentivize each project participant to minimize individual effort and seek maximum individual return with the project’s overall benefit relegated to a secondary consideration. 

IPD provides a solution to these problems by integrating project participants into a collaborative process which begins at the project inception stage and continues throughout the project’s lifecycle.  IPD achieves this by contractually requiring the designer, contractor, and owner to share the project’s risks and rewards.  IPD incentivizes project participants to achieve cost targets and rewards participants for timely accomplishing project goals.  This risk-reward structure fosters a cooperative effort toward efficient goal completion.

The IPD method relies heavily on the integrated utilization of BIM by the project participants.  The project participant’s use of BIM throughout the project’s life cycle provides significant benefits and allows project participants to reduce inefficiencies by receiving immediate feedback regarding the effect of design changes on the project’s budget and schedule.

Contractual Considerations for Building Information Modeling in Integrated Project Delivery Methodology

To facilitate the use of BIM in IPD, project participants need to identify and properly document solutions to potential issues, including the logistics of implementing and utilizing BIM, the allocation of responsibilities and risks, as well as BIM ownership and copyright issues.

The logistics of the implementation and utilization of BIM can be handled by developing a BIM Execution Plan which should define both the uses for and execution of BIM throughout the project’s lifecycle.  The BIM execution Plan should provide project information such as a project description, key project timeline milestones, and contact information for all project participants.  The BIM Execution Plan should also cover the scope of BIM in the context of the project’s requirements and should delegate responsibility for developing and maintaining the model. It should define timeframes for delivering model information to the project participants.  Finally, the BIM Execution Plan should establish information exchange protocols and model management requirements.

The underlying theme of IPD is that the project benefits the most when project participants collaborate and work together to achieve project goals. Collaboration is key, but to achieve this ideal, a clear plan of action with carefully delineated responsibilities and risks is essential.  The parties should carefully allocate the risks associated with the collaborative use of the BIM process.  This can be achieved by allocating liability and capping damages for each project participant’s contribution to, and use of, the model, and establishing and documenting reporting procedures in respect of any errors, or omissions discovered in the model by any project participant. 

Contractors should pay particular attention to allocations of liability in IPD projects. Unless precautions are taken, the collaborative use of BIM in IPD projects may further erode the traditional protections offered by the SpearinDoctrine. The Spearin Doctrine provides implied warranties to the contractor that construction is adequate if the contractor follows the plans and specifications that are provided by the owner. See, e.g., Erosion of the Spearin Doctrine of Implied Warranty in Alternative Project Delivery Methods. If the contractor collaborates with the owner and architect through the use of BIM, the line separating the contractor’s construction responsibilities from the design development and refinement stages becomes blurred.

The parties should also carefully address ownership and copyright issues. Each party should provide representations that it owns the copyrights or is authorized to use the contents of any contribution that party makes to the model.  Each party should grant the other parties a non-exclusive license to use and distribute—within the confines of the project—that party’s contributions to the BIM process as well as the model itself.  The parties should address the owner’s right to retain and use the model upon project completion.  Finally, the parties should also consider providing mutual indemnities for any infringement claims brought by third-parties related to BIM utilized on the project.

Conclusion

An Integrated Project Delivery method which successfully utilizes Building Information Modeling can provide significant benefits to all project participants. By working with counsel, project participants can achieve additional cost savings by anticipating issues, clearly defining the scope of their roles and responsibilities, and making sure that the risks and rewards are properly allocated among the parties.