In July 2007, Richard Lowe, the chair of the legal subforum of the Associated General Contractors of America's BIM forum, convened the first of many meetings of some 50 attorneys, architects, engineers, building owners, building project insurers, major subcontractors, and academics. The task: make a construction contract that takes the scariness and risk out of building information modeling.
A year and many meetings later, the group had created the ConsensusDOCs BIM Addendum, the first contract addendum that addresses the legal, liability, and process issues of creating a building with BIM.
ConsensusDOCs is a coalition of 22 leading construction associations, including the AGC. Several groups and industry leaders not affiliated with ConsensusDOCSs helped draft the addendum: the American College of Construction Lawyers, American Institute of Steel Construction, the National Institute of Building Sciences, and individual members of the American Bar Association Forum on Construction. To date, the BIM Addendum has been endorsed by 17 construction associations, including the AGC, the Construction Management Association of America, and the Construction Owners Association of America.
“What we wanted to create was a fair document not geared toward any constituency,” said Lowe, a partner with Duane Morris LLP in Philadelphia who has drafted and negotiated construction contracts exceeding $100 million. “The document was to be fair-minded and down the middle. It was going to be pro-BIM. We strived for best practices and gave people choices of how to apply them. We tried to clarify aspects of the issues that people had never thought about.”
The BIM Addendum requires the architect, general contractor or construction manager, and building owner to meet within 30 days of signing on to a BIM project and consider 25 different common issues on BIM projects.
One concern brought forth by both the design and construction representatives in the meetings was that architects could no longer tell where the line between design and construction was drawn, since everyone could access a BIM model and make changes.
The principle that the group reached was “You add it, you own it.” Lowe said a subcontractor or GC could make changes in the construction stages of a project, but the understanding would be that making such a change constituted a legal allocation of risk. No single entity “owns” the entire model; rather, everyone is responsible for his or her own alterations. Even when a dispute over payment arises, the BIM Addendum states that the model can still be used for design or construction while the dispute is resolved.
On other issues, the BIM Addendum gave choices to project participants of common solutions previously used on BIM projects. Architects, for instance, were concerned that a contractor would rely too heavily on the dimensional accuracy of any BIM model, that the modeling software was so powerful that it could be interpreted on site in a way that the architect never intended. Lowe said the group resolved this issue by giving the Building Team the option to agree on using all dimensions in the model, all call-out dimensions, or none.
Lowe stressed, however, that the document is an addendum. It does not require anyone on the Building Team to alter their work practices or necessarily engage in integrated project delivery. Unlike one of the American Institute of Architects' two new IPD contracts, the BIM Addendum does not require that the architect, owner, and contractor form a single-purpose entity or any other project entity.
“We made clear that you don't need to do BIM and IPD,” Lowe said. “I call BIM and IPD first cousins, they're related but you don't necessarily need to use them on a project together. We're not trying to tell [Building Teams] how to do their work. We're saying sit down and consider these issues in the beginning, and write it all down.”
