Do contractors need to consider BIM and other technologies for project management, collaboration and document management when entering into legal agreements?
Mike Koger
Manager & Counsel, Contract Documents & Risk Management
AIA Contract Documents
Yes. The use of BIM models is already common, and will only become more widespread. How we use BIM models also will evolve over time. Right now, design teams tend to use BIM as a tool to create traditional two-dimensional construction documents. Designers are often wary of turning over BIM models to contractors because they may contain excess information that was never intended for construction.
When the design team does turn over BIM models to contractors, both parties need to make sure there are established rules for how those models can be used, and to what extent they can be relied on. Can a model be relied on only for a simple window count, or can it be used to estimate or purchase the specific windows included in the model? These are the kinds of decisions that need to be made for each model shared between the design and construction teams. The AIA’s G202-2013, Project BIM Protocol can help parties establish these rules.
Brian A. Wolf
Partner
Smith, Currie & Hancock LLP
All commercial construction participants are well served addressing the use of technology in their design and construction contracts.
Technology allowing the parties to collaborate on project design, like BIM, requires careful consideration and assignment of risks and responsibilities for the ownership and use of the design. It also requires assignment of risks and obligations for time and cost impacts that naturally arise from the development, changes and implementation of the design both before and after the work starts.
Likewise, project management and collaboration technology must be managed contractually. Common issues are access and use of information, document management and preservation, and the accuracy of the project record.
The use of contract terms addressing technology is becoming more prevalent. Both the AIA and ConsensusDocs have published standard forms addressing the use of BIM and digital data. These documents provide a starting place and should be considered with the advice of counsel.
When seeking legal advice, why should contractors look for a firm with experience in construction law?
Adam P. Handfinger
Co-managing Partner, Miami Office
Peckar & Abramson, P.C.
Contractors require advice on contract provisions and negotiations, insurance coverage, financing, problem-solving during ongoing operations to ensure a successful project outcome, project closeout, and post-completion issues such as warranties and, where unavoidable, litigation.
Each of these components of construction law requires unique knowledge and expertise, over a wide variety of issues, such that only lawyers who practice in this area daily would be sufficiently versed and knowledgeable to give real-time legal advice.
Answers should be fast and accurate in order to adequately support a contractor’s business operations and goals.
Knowledge of the legal considerations is not enough. An understanding of the construction business itself, as well as the risks appropriately taken by each participant, is very important to provide contractors with relevant advice that promotes successful project outcomes and avoids disputes.
How do you approach alternative dispute resolution?
Brian Perlberg
Executive Director and senior counsel
ConsensusDocs
“Projects gone bad” have one thing in common: a failure to communicate. ConsensusDocs standard construction contracts aim to mitigate claims before they become intractable dispute in costly litigation. We require that the parties actually talk to one another directly and positively.
Within five days, people at the project level and then at the senior executive level must communicate and attempt to resolve a dispute. Most construction contracts funnel communications into the architect’s or engineer’s silo. And we all know from experience that when playing the telephone game, funneled messages almost always get garbled.
The construction industry is last in improving productivity. The use of unfair contracts is a big reason why.
ConsensusDocs best practice contracts now have a 10-year track record of putting billions of dollars of construction in place with significantly less claims. Contract success is measured by achieving better project results, not by creating more case law.
