Legal and Regulatory

The Growth of BIM and Its Impact on Contractor Risk

BIM has many benefits—and may reduce legal expenses as well. As the technology approaches the level of full adoption, that is an issue worth watching.
By James T. Dixon
September 6, 2020
Topics
Legal and Regulatory

Though its wide adoption is a recent phenomenon, Building Information Modeling has been in existence since the 1970s. Early software applications that modeled buildings came to be in the late 1970s and early 1980s. The term “building model” in this context appeared in the mid-1980s and the term “building information modeling” originated in a 1992 academic article. It was not for another decade that the term came into popular use when several software developers created the market. Soon after, the General Services Administration launched a project dedicated to integrating BIM into government projects.

McGraw Hill Construction reported in 2013 that 77% of institutional, 68% of public, 66% of commercial and 18% of multifamily projects in the United States utilized BIM, while only 1% of single-family residential projects did so. Of contractors, 39% utilized BIM on 31% or more percent of their projects, with expected growth in two years to 69%. By now, adoption rates must be significantly higher.

The same report indicated that during the pre-construction phase, contractors used the technology most often to coordinate trades, visualize the design intent and assess constructability. During construction, contractors used BIM to assist with layouts, prefabrication and progress monitoring. The technology performed as advertised in that contractors cited the reduction of rework, costs and time as the primary benefits. It may also be the case that BIM has reduced disputes that result in legal proceedings. Considering the paucity of reported cases, that topic is worthy of in-depth research.

Of the reported cases, BIM-related lawsuits generally fall into two categories—failure to use BIM and misusing BIM. In the first category, the contractor, subcontractor or architect simply fails to provide any BIM services to the client. See, Boneso Brothers Construction, Inc. v. Sauer, Inc., 2018 WL 2387833 (N.D. Cal. May 25, 2018); Merrill Iron & Steel, Inc. v. Blaine Construction Corp., 2017 WL 272028 (W.D. Pa. January 20, 2017). The cases have not fully explained why the contractor, subcontractor or architect could not comply. Did they miss the fine print? Did they not own the software? Were they not proficient? Regardless of the reason, construction executives must train their teams to confirm when the use of BIM is part of the contract. The 2013 data indicated that contractors drove the use of BIM more than owners, but even so, the percentage of projects where use was driven by owners was significant.

In the second category of claims, one party or another fails to properly utilize BIM. In one case, North American Mechanical, Inc. v. Walsh Const. Co. II, LLC, 132 F. Supp.3d 1064 (2015), the general contractor required some, but not all, subcontractors to participate in and utilize the BIM process. The contractor created the initial BIM base using the architect’s plans in order to create a single, comprehensive, digital model of the project. This base model was supplemented with details from many, but not all, of the subcontractors. Unfortunately, the contractor did not include everything set forth in the architect’s plans in the BIM base. This resulted in a number of problems, the most critical of which was with the HVAC system. The subcontractor found steel studs and drywall in areas that it expected would be open. And, the subcontractor found other trades blocking its access to certain critical areas. As one would expect, the impact on the HVAC subcontractor’s scope of work and schedule was significant.

While BIM is delivering on its promises, it may also be the case that it is providing for a reduction in legal expenses. As the technology approaches the level of full adoption, that is an issue worth watching.

by James T. Dixon
Jim Dixon helps members of the construction industry manage risk, avoid loss, and resolve disputes on projects throughout the country. Jim drafts and negotiates construction contracts, advises clients during construction, and resolves disputes through mediation, arbitration and litigation. He has handled claims related to defective construction, schedule delays, disruption and acceleration, differing site conditions, unapproved change orders, payment and performance bonds, and mechanic’s liens. Jim is adept at advancing bid protests on public projects, in resolving disputes on tunneling projects, and in addressing disputes on projects utilizing the integrated project delivery system.

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