Lawyers Struggle with Contract Terms
The legal community is struggling to assist in developing meaningful contract terms relating to the use of technology in design. That’s not surprising given the speed with which building information modeling has appeared on the construction scene, say lawyers. Further complicating the legal scene is a lack of industry standards covering what BIM is and does. There also is disagreement about the best process to generate model design and which deliverables should be derived from the completed model.
Lawyers Kimberly A. Hurtado, managing shareholder of Hurtado SC, Milwaukee, and Patrick J. O’Connor Jr., partner in Faegre & Benson LLP, Minneapolis, offer advice about what to consider when assessing risks of using BIM and developing appropriate contract language: 1) What will the models be used for? 2) What is the schedule of deliverables from the model? 3) How and to what extent will data from one model be incorporated into others? 4) How is the modeling process to be managed? 5) What is the level of reliance that can be placed on modeled information? 6) Will the model be used after construction is completed?
There are several areas that designers should look into when investigating insurance coverage for a project. “Make sure that professional services include the kinds of BIM-related services you are doing or planning to do, whether it is hosting BIM models or working in BIM,” advises lawyer Douglas C. Green, vice president of insurer Marsh Green Construction Practice, Minneapolis, and chair of the Associated General Contractors BIM Forum insurance task force. “At least have that conversation,” says Green.
Designers should consider buying insurance against first-party damage, he says. This would protect the insured in case something goes awry with the electronic data, such as viruses or hackers. “It’s like auto insurance if you hurt your own car,” says Green.
All agree that the industry needs a different insurance product for BIM-enabled integrated project delivery. “We’re dancing around the edges of that,” says Green.
Green and others say they have not heard of any BIM-related claims or court cases.
