I'd like to make a few unmade points about “A Cautionary Digital Tale of Virtual Design and Construction,” the story run by ENR and ENR.com last month that drew 100 comments.

The story discusses “the first known claim related to the use of building information modeling by an architect ... [who] used BIM to fit the building's MEP systems into the ceiling plenum ... [but] did not tell the contractor that the extremely tight fit, coordinated in the BIM, depended on a very specific installation sequence.” 

It amounts to a new chapter in the story of the legal ramifications of new means, methods and technologies, and the interactions of scheduling and legal issues.

Typically, any first year law student would tell us that the owner cannot both tell the contractor what to do and how to do it, and then expect the contractor to be responsible for the results. Even suggesting “one possible way” to accomplish an end will be interpreted by a court to mean the contractor may rely on such suggestion.

This is often referred to as the Spearin doctrine.

According to the Industrial Risk Management Institute, Spearin is a legal principle that holds that when a contractor follows the plans and specifications furnished by the owner, and those plans and specifications turn out to be defective or insufficient, the contractor is not liable to the owner for any loss or damage resulting from the defective plans and specifications. This rule has been adopted by the courts in virtually all states. 

Control and responsibility are linked.
Our course recommends a design engineer to prepare a construction CPM when drawings are 70% complete for purposes of a constructability review, but stresses that this study not be permitted to be seen by the contractor, either before bidding or after award. Whether or not this analysis is performed, the engineer's guarantee to the contractor is the project can be built. This step should reduce the number and severity of drawing modifications, change orders and resultant additional cost to the owner. 

Because of Spearin, the engineer's "mock CPM" should not be shared with the contractor. 

But neither may the owner fail to provide its superior knowledge when placing a project out to bid. Whether we are speaking of an engineering report noting subsurface conditions, or a design that will call for temporary supports (false-work) during construction, such should be noted with the bidding documents. 

BIM modeling not only permits, but encourages “fit out” studies. 

Designers previously leaving large tolerances in a utility chase, so to insure against their implied guarantee that “all can fit”, now are going to the next level of coordination and reducing wasted space to a minimum. 

If the engineer only has raw boring data, it need not prepare and share the analysis thereof. If the engineer only has a BIM model having tolerant utility chases, it need not prepare and share a coordination analysis.

But if the analyses are performed, and especially where the final design depends on these studies, they must be shared and highlighted so as to not be lost in the haystack. 

As we move to a world of more collaboration, even among contractual adversaries, the impact of a shared computer in the office of the engineer, or in the Cloud, must be considered.

Contemplate a 3D 4D 5D BIM model (which may be viewed from a new angle by the contractor revealing construction or even end user functionality issues) or resource loaded and leveled CPM schedule (which may reveal to the owner that a subcontractor working on other owner works is now dangerously over-extended).  

Whither Spearin of 1918?

The owner approved the contractor’s submitted subcontractor. Now the owner has additional information.

Does the owner of 2011 have the duty (or the right) to notify the contractor that the subcontractor is not getting its submitted estimated CPM durations on other works on the site?

Does the contractor of 2011 have the duty to notify the owner that it can install a valve, but it will be inaccessible to the owner’s maintenance personnel?