Legal Aspects of Shared Building Information Models - Coursework Example

Legal Aspects of Shared Building Information Models Risks and Benefits Name of Student: Student No: Date: Name of Supervisor: Abstract The manner in which projects are incepted, designed, communicated, and built has been altered by the presence of Building Information Modelling. This is because this tool integrates every aspect of architectural, engineering and construction (AEC) industry and has shown that risk reduction is possible through elimination of inefficient and redundant systems while simultaneously enhancing teamwork and communication and this ultimately improves the project’s overall productivity. These benefits aside however, BIM also has several legal issues and risks that have yet to be properly looked into by the industry. Building Information Modelling can be described as an all-inclusive information management tool which uses simulation of design and construction as its basis. It is not simply a pictorial representation in 3-D. It was incepted in Computer Aided Design (CAD) developed several years ago but has not been categorised under a single definition by the AEC sector. BIM technologies are useful in the reduction of waste in the entire AEC industry. This can be done through the influence of projects early in the delivery phase. The legal issues, risks and barriers that come up when utilising BIM are manifold. They can be divided into three main categories. These are commercial issues, legal concerns and technical issues. From the standpoint of legal liability, both between contracting parties and third parties, there are uncharted waters in BIM and there is little legal precedence to go on. Therefore it is important for contracting parties to address these issues as quickly as possible in order to reduce the liability risks and allow the project to concentrate on the advantages that the model affords. Table of Contents Abstract 3 Table of Contents 4 Legal Aspects of Shared Building Information Models 6 1.0Introduction 6 1.1 Definition of BIM 7 1.2 Benefits of BIM 7 2.0Issues 8 2.1 Commercial Issues 8 2.1.1 Instant Benefits Do Not Accrue To the Key Designer 8 2.1.2 BIM Contract Documents are not Standardised 9 2.1.3 Insurance 10 2.1.4 Inertia 10 2.2 Legal Concerns 11 2.2.1 Risk Allocation 11 2.2.2 Standard of Care 11 2.2.3 Privity and Third Party Reliance 12 2.2.4 Economic Loss Doctrine 13 2.2.5 Intellectual Property 13 2.3 Technical Issues 14 2.3.1 Universal Model or Multiple Models 14 2.3.2 Interoperability 14 3.0Impediments to Growth of BIM 15 4.0BIM Levels; the Legal Issues 16 4.1 BIM Level Background 16 4.2 Game Changer; BIM Level 3 17 4.3 BIM Level 2 in Practise 17 4.5 The private sector 18 5.0 Industry Issues on the Legal Feasibility of Bim Implementation 19 6.0 Discussion 23 6.1 BIM Contract and Specification Language 23 7.0 Conclusion and Recommendations 25 7.1 Recommendations 25 References 26 Legal Aspects of Shared Building Information Models 1.0 Introduction Over the last three and a half decades a lot of research has been done to find methods and tools to sponsor exchange of information specific to building via computers as well as ability to operate in a multi-disciplinary way in the field of building science. All the stages in the life cycle of a building begin at the pre-design phase which involves feasibility studies followed by design, planning construction, construction, management of facilities and operation which makes up an entire holistic process (Eastman, 2008). Khemlani et al (2007) illustrates the various approaches that have been used in knowledge based design systems to that are similar to BIM. This includes the international Standard for the Exchange of Product Model Data or STEP which is not specific to the building industry which gives a foundation for the exchange format found in BIM models. Malkawi (2005) outlines the International Alliance for Interoperability (IAI) developed in 1994 and is used to create a data-exchange system that is founded on the building product model. This system is made up of a component-based data library which features descriptions of construction components and how they are interrelated in standardised classes known as Industry foundation classes or IFC. The manner in which projects are incepted, designed, communicated, and built has been altered by the presence of Building Information Modelling. This is because this tool integrates every aspect of architectural, engineering and construction (AEC) industry and has shown that risk reduction is possible through elimination of inefficient and redundant systems while simultaneously enhancing teamwork and communication and this ultimately improves the project’s overall productivity. These benefits aside however, BIM also has several legal issues and risks that have yet to be properly looked into by the industry. 1.1 Definition of BIM Building Information Modelling can be described as an all-inclusive information management tool which uses simulation of design and construction as its basis. It is not simply a pictorial representation in 3-D. It was incepted in Computer Aided Design (CAD) developed several years ago but has not been categorised under a single definition by the AEC sector. One definition that has been used is one by the Associated General Contractors of America (2006) which terms BIM as the creation and utilisation of a computational software model in order to carry out a simulation of how a facility is constructed and operated. Once the model is constructed, it is known as a building information model, rich in data and oriented toward objects, displays intelligence and parametric digital representation of the facility which contains views and data that can be extracted and analysed by the user to suit their various needs by producing data that can be utilised to draw conclusion and augment process delivery within the facility. This process is also known as Virtual Design and Construction (VDC). 1.2 Benefits of BIM BIM technologies are useful in the reduction of waste in the entire AEC industry. This can be done through the influence of projects early in the delivery phase. Benefits to contractors include visualisation, scope clarification, partial trade coordination, collision detection, or avoidance, design validation, construction sequencing planning/phasing plans/site logistics, marketing presentations, option analysis, walk-through and fly-throughs, virtual mock-ups and sight line studies. 2.0 Issues The literature review will analyse the different risks and benefits associated with BIM. There are several legal issues that arise which are inadequately addressed by the industry. A case in point is the basis of most legal systems which is the individual whose rights and responsibilities are outlined therein. BIM in contrast, is basically collaborative and this brings about conflict between the necessity to define responsibilities securely and restrict dependence on others and the necessity to encourage teamwork and dependence on data rooted in the model. The legal issues, risks and barriers that come up when utilising BIM are manifold. They can be divided into three main categories. These are commercial issues, legal concerns and technical issues (Ashcraft, 2006). 2.1 Commercial Issues 2.1.1 Instant Benefits Do Not Accrue To the Key Designer Accumulation of benefits from BIM to the owner is apparent. These include the utilisation of a virtual model which optimises design, and makes for fewer design and construction errors as well as less issues with coordination that lead to a decrease in conflicts and claims. When the project has been completed, the owner can utilise the as-build model for administration and operation of the project. On the other hand, design professionals may not enjoy instant fiscal benefits of BIM. This is because there are some practical bottlenecks created by BIM to the design professional such as the need to implement the new technology, employee training, and campaigning for the use of BIM in order to enhance competitiveness. Without economic incentives, there is no motivation for designers to implement BIM processes because this could raise the potential liability of the designer. The presence of rich data in the virtual model does not translate to compensation for the designer. The risks involved for the designer are not commensurate with the rewards. 2.1.2 BIM Contract Documents are not Standardised The dearth of standardised contractual documents aimed at BIM leads to restriction in its development. Standard contract documents are useful for three major functions; Provision of a structure for practise Foundation of an accord in allocation of risks and an incorporated relationship between assumed risks, resolution of disputes and insurance. Decreased energy input in documentation of the function and tasks of project participants. There is a difference between professional liability insurance and a industry standard agreements; the former is not a hindrance while the latter is to a collaborative BIM situation. Contemporary contractual forms clearly delineate, define, and assign tasks and risks to the involved parties. The premise under which these agreements are based are that the legal system contrasts the work of design as a professional service and that of construction as an obligation guided by contracts and warranty. The whole idea behind standard contracts is the summary of design data into tools of service which the contractor gives the client for their use. The client is the determinant of how adequate the document is. Although electronic information is increasingly shared, there persists a separation between design and construction. Even as design data is regularly transferred digitally, the hard copy still remains the frame of reference for control of information. This brings about inefficiencies and is viewed as dysfunctional where information and risk are shared. As the integrated practice develops, contractual documents also need to do the same so as to identify assigned and mutual responsibilities for the design information generation, sanction valid dependence on the data, allocate the task of updating and archiving the database as well as supply of recompense for the risks, efficiencies, services, and savings produced. Several of the essential roles and responsibilities for a project are altered under the auspices of BIM. Contracts which establish an accord between assignment of risks and provision of a structure for practise will take some time to create. 2.1.3 Insurance Technological advances are far ahead of the law. The stakeholders in the industry share an understanding of the limits of responsibility of each contracting party. These ‘bright line’ separations are useful in allocating liability. The purpose of insurance is to keep a record of legal liability and therefore it is reliant on clear delineations of responsibility. Thus when presented with a collaborative effort, the legal lines are blurred. This causes insurers to be hesitant to take on such imprecise exposures. 2.1.4 Inertia Industry is slow to react to change, especially that which is striking and elementary, driven by technology. Using BIM in the design and construction industry will result in revolution in methods to deliver projects. This will not happen however unless the project team is fully collaborative. In order to achieve the framework of a team, the parties must write it into their contracts. This means that the concept of full collaboration is based on the idea that the complete project team viz the owner, consultants, engineers, architect, contractors/construction managers, and other specialty contractors are key to the project’s initiation. In order for the efficiencies of BIM to be maximised, the team structure must be present to sustain it use. All the stakeholders are obliged to function cohesively in order to share data that facilitates faster, better, less expensive performance from all partners. This aim is only possible when each member adapts the new technology and approach and buys into the idea of working collaboratively. 2.2 Legal Concerns 2.2.1 Risk Allocation Utilisation of BIM significantly changes interaction between parties and combines their functions and tasks. The legal environment assumes that the delineation of responsibility is more distinct than is typical for BIM. Developments in technology increase availability and relevance of BIM to how project team members work. Although the way projects are incepted, designed, communicated, and built may change because of BIM, the primary responsibilities of project team members do not change. It makes no difference whether the design is in 2-D or 3-D or an amalgamation of both but the team’s responsibilities remain the same. It is essential to identify the distinction between design and management. Composite model creation does not need or replace a design that is illustrated in 2-D. Ability to identify, validate, and value the data contained in any BIM is the responsibility of members of a project team. 2.2.2 Standard of Care Professional liability in design is a factor of the standard of care. Elementary comprehension of standard of care aids in this endeavour. Such a clause may be illustrated as follows; “The Design Professional’s services shall be performed in a manner consistent with that degree of skill and care ordinarily exercised by practicing Design Professionals performing similar services in the same locality, and under the same similar circumstances and conditions” (Yoakum, 2006: 1-10). Legal liability and standard of care share a connection and many contracts refer to it as the liability standard. The impact of alterations in roles means that clarity in the standards definition are non-existent. Of course the agreement of the design professionals must plainly allow reliance in the absence of exhaustive examination; however the capacity to count on another’s input may be restricted by professional registration statutes and ethics. a result of this is the utilisation of risk transfer procedures such as indemnity agreements or limitations of liability which are used to rebalance design professional liability. What distinguishes professional and software liabilities is that when software has a problem, there is little opportunity for recompense from the software seller. This is because warranties are limited and there exist broad consequential damages waivers. The person who stands to gain the most from BIM is the one who should control the risk, thus the risk should be assigned to the owner via contract with the design professional. 2.2.3 Privity and Third Party Reliance When collaborative models are used, the likelihood for a designer to use lack of privity as a successful defence would be reduced. The designer of the model must acknowledge that other stakeholders are dependent upon the precision of the model such as contractors and subcontractors. The Restatement (Second) of Torts is a statute upheld in many jurisdictions in which should a person provide information negligently, they are liable if the purpose is to have the plaintiff reliant on the data. Liability is only applied in Restatement should there be intent proven to influence or contact a group or class of people (Ashcraft, 2006). Therefore those dependent on the model will probably sue the designer for damages brought about by negligence. This means the designer needs to obtain a waiver of consequential damages prior to access to the model or restricting damage due to model faults. The concept of getting waivers or restrictions to liability in order to limit charges of detrimental reliance is not consistent with the BIM process. Disclaimers may not be effective as dependence is inherent to the model. BIM embodies open exchange of information and depends on it when integrated in the ultimate model. Damage can still happen and the custodian of the information may be perceived as the source. In the event of the model becoming a tool to help the client operate or modify the facility, the matter of the client’s rights to utilise all the information without regulation comes to the fore. 2.2.4 Economic Loss Doctrine This is another extremely disputed defence for the actions of contractors against design professionals (Ashcraft, 2006). The dogma upholds the premise that losses that are purely economic are not recoverable through a negligence claim. The defence of utility among jurisdictions varies as it does with privity and third party reliance and it depends on specific facts. 2.2.5 Intellectual Property There is a vacuum in the stipulation of ownership of intellectual property in the BIM process. Because BIM is a shared model, intellectual property is provided by various participants in design which are then integrated into the final model. With the sharing of information that project stakeholders carry out as they insert details to the project models, whom exactly owns the copyright might not be clear in the event that any of the designers wish to use it for subsequent projects. This issue is made more intricate by the incidental exchange of proprietary information, patented processes, and trade secrets. There is a danger to confidentiality and ownership rights. 2.3 Technical Issues 2.3.1 Universal Model or Multiple Models The theory behind BIM is that it is based on one store of information that caters to the requirements of all project participants. Any change that takes place whether electrical, structural, mechanical, or architectural to the design transpires within the model. The details of contractors and suppliers are incorporated into the model, increasing design detail. It also provided field and shop level graphics. Although this degree of incorporation has been attained in some manufacturing processes, construction reality is different, which implies that there is usually more than one model. The composite model is where the initial advantages of visualisation and conflict detection are located. There has been a valiant effort made to increase incorporation of BIM software and to facilitate interoperability but so far this has not come to fruition. 2.3.2 Interoperability The Structural Engineering Institute of ACSE conducted a survey in which they found that poor interoperability was the biggest concern of various vendors of parametric modelling software. Interoperability can be defined as management and communication capacity of the electronic product and project information found among cooperating organisations. The capability for various software packages to utilise, amend, expand, and exchange data is dependent on the universal standards which are used to illustrate construction elements and systems. The National Institute of Standards and Technology has reported that 15.8 billion dollars goes to waste every year because of insufficient interoperability (Gallaher and O’Connor, 2004). 3.0 Impediments to Growth of BIM The question of whether legal issues would impede the development of BIM was answered by Michael Vardaro, partner at Zetlin and De Chiara LLP. He informed a group of construction experts that lawyers may be the impediment to BIM due to their glacial attitude toward change and such problems as the fact that building departments generally do not accept submissions. He tabulated such legal issues as responsibility for design; risk assumption; issues of software; copyright/ownership; standard of care; issues of licensing; schedule (4D); cost (5D); shop drawings; coordination; legal uncertainty; model controls; acceptance by permitting authorities; insurance; risk management/sharing as associated bottlenecks to BIM as well as other issues. Mr Vardaro was of the opinion that as it pertains to model controls, it would assist usage if the question was addressed in the contract. It should specify who has the authority to amend the model components and on who foots the bill for the model and who maintains it. Identification of the model host determines access to the model as well as its physical location. In the BIM situation where various participants are incorporated into the model, the shut down of the same may affect the entire project schedule. Therefore determination of the host is important. Other issues to do with model control include the manner in which access is controlled, who is authorised to input data, methods of tracking changes, prevention of unauthorised stored data usage, archive of earlier versions, file corruption, model communication and data accuracy (WPL Publishing Co., 2012) 4.0 BIM Levels; the Legal Issues 4.1 BIM Level Background BIM level 2 is a three dimensional milieu which are held in separate disciplines’ BIM tools. These often feature attached data, managed through proprietary interfaces or custom-built middleware. This means that information is kept in multiple databases and the commercial data is kept in a separate area accessible with the proper software. BIM level 3 utilises a single standardised model which is accessible to anyone who requires it. It can more technically described as a completely open process complete with data integration which facilitates web services. In order for them to work, the web service, managed by a collaborative model server, must show compliance with developing industry foundation class standards. 4.2 Game Changer; BIM Level 3 The development of BIM level 3 has precipitated alterations to the structure of terms and contracts. These alterations are designed to mirror the multi-party input characteristic of the entirely integrated BIM, oversee the altered responsibilities of the participants and acknowledge the collaborative structure and method required for BIM level three to have a smooth practical application. BIM level 2 is possible via a contractual point of view with the utilisation of standard form contracts altered by simple caveats to do with BIM protocol. These will encompass the regulations that are applicable to all participants in the BIM model. 4.3 BIM Level 2 in Practise There are arguments in legal circles about how appropriate standard form contracts are in a BIM environment, even up to level 2. The nature of collaboration reflected in the model is not featured in the standard forms. 4.4 The BIM protocol According The Commmercial Workstream the goal for the BIM protocol is to be converted into a contract document that will cover all professional consultants’ appointments as well as the major contracts. It will integrate requirements for recording BIM arrangements specific to each project. These arrangements include; Defining the duties and tasks of the various participants to the BIM Particulars of application of the level of BIM and model standards Configuration and data exchange values. Sample phrasing for licences Data exchange contracts Who is authorised to use BIM. Adoption procedures for Change management processes. BIM deliverables. The question remains as to whether BIM protocol will address other potentially controversial matters. These include: Who is responsible for the model Allocation of risk in BIM IP allocation for BIM. Whether or not the protocol covers these issues, it is a critical contribution to the implementation strategy for BIM. 4.5 The private sector Several major contractors and industry experts are examining these issues. The private sector is taking a leading role in creating new BIM compliant contracts and protocols that take into account the collaborative nature of the projects and encourage a new way of operating while giving a new set of deliverables. Once this is done, the new contracts can be as lucrative to the private sector as to the public sector. 5.0 Industry Issues on the Legal Feasibility of Bim Implementation Ahuja et al (2009) reported in a survey that collection of market reports claim that the popularity of e-business in the industry is growing. Furthermore, Luciani (2008) makes the inference that the era of e-processes is truly here, based on a major corresponding outcome, within the construction industry. Previously done studies specifically tabulate several specific prospective benefits in BIM deliverables which include virtual reality gaming, automation and simulation, integrated delivery systems and the way that they help e-processing (Bedrick, 2006; Hiremath and Skibniewski, 2004; Ballesty et al, 2007 and Li et al, 2009). It remains difficult to measure and evaluate the level of adoption of e-processes across disciplines and the carrying out of associated strategies. However it is possible to surmise that the utilisation of manual and paper-based procedures and tools is being overtaken by the switch to digital technology. It is not only the system by which information is conducted, but also emerging proactive opportunities as well in which service quality and transaction outcomes are improved which are being transformed. There is a disconnect between legal structures buttressing fragmented business models and the projected electronic innovation alternatives (Engsbo, 2003). The prevailing legal frameworks within the sector have remained fairly static for many decades and any changes have not been substantial enough to cater for the fluid nature of e-processes and the associated digital technology. As a result in order to navigate innovation in digital technology, the current legal framework needs to be reformulated and tactically set out to attain the required aim as and when they fall due. BIM is far removed from fragmented processes. It is clearly documented in literature on what its attributes are. Huang et al, (2009) released a recent survey that illustrated the digital repository uses of BIM for integrated systems, in which participants are given a means to contribute and disseminate information, simulate and visualise feasible results in the course of design, embed virtual objects with vigorous data at various phases and set out a number of collaboration tools to stimulate project goals. Maher (2008) augments this data with facilitative elements including the capacity to facilitate many users to access the project database and simultaneously network which economises on time and improves results at real time. Other studies such as Marshall-Ponting and Aouad (2005), Gul et al., (2008) and Bedrick (2006) give a summary of how these elements have affected the industry viz. specifically manage inconsistencies in inputs and facilitate automatic review of updates. They also assert that these elements can make changes automatic which can be utilised and stored for the duration of the project. Legal framework issues have been outlined by Campbell and Harris (2005) and a similar perspective is reported by Holzer (2007) in which it is suggested that facilitation of lasting solutions by BIM may be limited by archtypal fragmented processes unless perceptible issues made more intricate by the holes in the legal framework and e-business models are taken care of. These challenges are illustrated in figure 1. 6.0 Discussion The increasing necessity to amplify efficiency in creation of capital improvements reduced times for delivery, lesser disagreements and less waste and non-productive overheads has prompted the AEC industry bodies to incept effective processes. Should BIM be applied on a large scale, productivity in the industry will be jump-started. The integration of BIM in design and construction introduces a systematic approach to the industry which achieves improvement by generating a collaborative business and legal atmosphere. This in turn makes adoption and growth of BIM technology conducive. 6.1 BIM Contract and Specification Language From the standpoint of legal liability, both between contracting parties and third parties, there are uncharted waters in BIM and there is little legal precedence to go on. Therefore it is important for contracting parties to address these issues as quickly as possible in order to reduce the liability risks and allow the project to concentrate on the advantages that the model affords. The traditional roles and responsibilities of contracting parties do not necessarily have to change however, although express definition of context must be done in order to outline expectations when using BIM. The creation of and observance of procedures to use the BIM models are a protection of the agreed roles as laid out by the parties which is important when preserving appropriate allocation of risk. BIM is no different from other design and construction processes in that all it requires is a clear comprehension of the role of each participant in the process. Each party to the contract must control its own model, while permitting sharing to take place for comments, checking conflict and solving problems without alterations to or updates to the other parties. Design decisions should be confined to the design team while means and methods are to be created by contractors. The whole process must be under the direction of one focal model project manager who is the custodian of access to the participating parties and upholds the accessibility, protection and edition control of data. In order to do this certain questions need to be addressed within the owner-design agreement as well as the project agreement between owner and contractor. Generally, the questions are not confined to BIM projects but they do hold significant importance in this area (Larson and Golden, 2008). These questions are the type of model to be developed; which party will develop and manage the model; what content each model will have – defining the scope extensively; identification of the overall manager for the modelling process, which entails integrating various models or information from them. It must also specify whether there will be change of management in the process of design and construction, as well as outlining contributors to the model or models and who has access to the models; outline data storage; defining design as opposed to non-design data; identification of which models are available for use by other parties; the how and when of reliability of the model; what level of completion must the model achieve and on what time line; specify the work to be designed by contractor, whether there are any performance specifications, and whether any parts of the work are design build; should the design recommendations be manufactured by a contractor and integrated by the design professional to the model the question is, who is liable for the design; the manner in which collaboration in design changes the responsibility for the design; is it possible to differentiate the responsibilities of the various parties; the process by which models are shared and made available and which party can modify it; in the event of defect or delay in design or construction caused by BIM software, what is the standard operating procedure, and does the software producer have prospective liability; would digital models be considered as contract documents and what is the purpose? 7.0 Conclusion and Recommendations The creation of cost-efficient, projects at a specific deadline that adheres to regulatory requirements at accepted levels of quality has always been a goal that the AEC aspires to. With the advancement of technology, this goal may be easier achieved via integrated practise methodology. This methodology can be facilitated through BIM technology but the lines between design and construction are obscure. The use of BIM causes very elemental alterations to the project delivery process, affording new opportunities in service and decreasing communication and documentation issues that are the genesis of numerous claims. Intricate construction projects are commenced in fluid environments whose outcome could be highly uncertain and risky circumstances exacerbated by difficult time limitations. Consequently, many construction projects fail to succeed in terms of achieving productivity and performance goals as well as maintaining quality, safety and budgetary parameters. Instead of approaching BIM as a technological tool, it can be evaluated as a project delivery method, complete with rewards, risks, and relationships. 7.1 Recommendations The biggest stakeholders in AEC are the owners and this group is not well served by the elemental inefficiencies of the industry. No single answer provides solutions to this problem but technology has provided all the advancements to productivity in recent times. Huge inefficiencies persist in design and construction and BIM must be integrated into the process of building in order to deal with said inefficiencies and to foster effective communication among participants in the project. In spite of the advantages BIM offers to owner, contractor, and design team, it is also a source of risk among contracting parties. To cater effectively to the risks brought about by BIM and the project delivery methods behind it, an alteration in allocation and mechanism of risk allocation must be done. References Ahuja, V., Yang, J. & Shankar, R. (2009). Study Of Ict Adoption For Building Project Management In The Indian Construction Industry. Automation In Construction, 18, 415-423. Ashcraft, H. (2006). Building Information Modeling: A great idea in conflict with traditional concepts of insurance, liability, and professional responsibility. Victor O. Schinnerer & Company, Inc., Chevy Chase, Maryland. Associated General Contractors of America. (2006). The Contractors’ Guide to Building Information Modeling, 1st Ed., AGC, Arlington, Virginia. Ballesty, S., Mitchell, J., Drogemuller, R., Schevers, H., Linning, C., Singh, G. & Marchant, D. (2007). Adopting Bim For Facilities Management: Solutions For Managing The Sydney Opera House. In Winter, M. (Ed.). Brisbane, Australia, Cooperative Research Centre (Crc) For Construction Innovation. Bedrick, J. R. (2006). Virtual Design And Construction: New Opportunities For Leadership The Architect’s Handbook Of Professional Practice Pittsburgh Aia. Campbell, D. & Harris, D. (2005). Flexibility in Long-Term Contractual Relationships: The Role of Co-Operation. Lean Construction Journal, 2, 5-29. Eastman, C., Teicholz, P., Sacks, R., Liston, K. (2008). “Managing BIM Technology in the Building Industry.” AECbytes, retrieved 2012-06-28 from http://www.aecbytes.com/viewpoint/2008/issue_35_pr.html Engsbo, M. (2003). Barriers To Adopting Internet-Enabled Collaboration And Business In The Building Construction Industry - Towards A Three-Level Framework. Frontiers Of E-Business Research, 456 - 462. Gallaher, X. and O’Connor, X. (2004). "Cost Analysis of Inadequate Interoperability in the U.S. Capital Facilities Industry." Retrieved 2012-06-28 from www.bfrl.nist.gov/oae/publications/gcrs/04867.pdf Gül, L. F., Gu, N. & Williams, A. (2008). Virtual Worlds As A Constructivist Learning Platform: Evaluations Of 3d Virtual Worlds On Design Teaching And Learning Journal Of Information Technology In Construction, 13, 578-593. Hiremath, H. R., & Skibniewski, M. J. (2004). Object-Oriented Modeling Of Construction Processes By Unified Modeling Language. Automation In Construction, 13, 447-468. Holzer, D. (2007). Are You Talking To Me? Bim Alone Is Not The Answer. Association Of Architecture Schools Australasia Conference. University Of Technology Sydney, Australia. Huang, T., Li, H., Guo, H., Chan, N., Kong, S. & Skitmore, M. (2009). Construction Virtual Prototyping : A Survey Of Use. Construction Innovation : Information, Process, Management, 9. Khemlani, L. (2007). “BIM Fundamentals Seminar for Structural Engineers.” AECbytes, retrieved 2012-06-28 from: http://www.aecbytes.com/buildingthefuture/2007/BIMFundamentalsSeminar_pr.html Larson, D. and Golden, K. (2008). “Entering the Brave New World: An introduction to contracting for BIM.” William Mitchell Law Review, 34, 1-25. Li, H., Chan, N., Guo, H. L., Lu, W. & Skitmore, M. (2009). Optimizing Construction Planning Schedules By Virtual Prototyping Enabled Resource Analysis. Automation In Construction, 18, 912 - 918. Luciani, P. (2008). Is A Revolution About To Take Place In Facility Management Procurement? European Fm Insight. Eurofm. Maher, M. L. (2008). Keynote: Creativity and Computing In Construction. Annual Conference of the Australian And New Zealand Architectural Science Association (Anzasca 08). University Of Newcastle, Australia Marshall-Ponting, A. J. & Aouad, G. (2005). An Nd Modelling Approach To Improve Communication Processes For Construction. Automation In Construction, 14, 311-321. WPL Publishing Co. (2012). Will Legal Issues Impede Building Information Modeling’s Growth? Retrieved 2012-07-01 from http://constructionadvisortoday.com/2012/03/will-legal-issues-impede-building-information-modelings-growth.html#more Yoakum S. (2006). “Building Information Modeling (BIM) Risks and Liabilities.” Donovan Hatem, LLP, Builders Association, Kansas City, Missouri, 1-10. Read More

1.2 Benefits of BIM BIM technologies are useful in the reduction of waste in the entire AEC industry. This can be done through the influence of projects early in the delivery phase. Benefits to contractors include visualisation, scope clarification, partial trade coordination, collision detection, or avoidance, design validation, construction sequencing planning/phasing plans/site logistics, marketing presentations, option analysis, walk-through and fly-throughs, virtual mock-ups and sight line studies. 2.0 Issues The literature review will analyse the different risks and benefits associated with BIM.

There are several legal issues that arise which are inadequately addressed by the industry. A case in point is the basis of most legal systems which is the individual whose rights and responsibilities are outlined therein. BIM in contrast, is basically collaborative and this brings about conflict between the necessity to define responsibilities securely and restrict dependence on others and the necessity to encourage teamwork and dependence on data rooted in the model. The legal issues, risks and barriers that come up when utilising BIM are manifold.

They can be divided into three main categories. These are commercial issues, legal concerns and technical issues (Ashcraft, 2006). 2.1 Commercial Issues 2.1.1 Instant Benefits Do Not Accrue To the Key Designer Accumulation of benefits from BIM to the owner is apparent. These include the utilisation of a virtual model which optimises design, and makes for fewer design and construction errors as well as less issues with coordination that lead to a decrease in conflicts and claims. When the project has been completed, the owner can utilise the as-build model for administration and operation of the project.

On the other hand, design professionals may not enjoy instant fiscal benefits of BIM. This is because there are some practical bottlenecks created by BIM to the design professional such as the need to implement the new technology, employee training, and campaigning for the use of BIM in order to enhance competitiveness. Without economic incentives, there is no motivation for designers to implement BIM processes because this could raise the potential liability of the designer. The presence of rich data in the virtual model does not translate to compensation for the designer.

The risks involved for the designer are not commensurate with the rewards. 2.1.2 BIM Contract Documents are not Standardised The dearth of standardised contractual documents aimed at BIM leads to restriction in its development. Standard contract documents are useful for three major functions; Provision of a structure for practise Foundation of an accord in allocation of risks and an incorporated relationship between assumed risks, resolution of disputes and insurance. Decreased energy input in documentation of the function and tasks of project participants.

There is a difference between professional liability insurance and a industry standard agreements; the former is not a hindrance while the latter is to a collaborative BIM situation. Contemporary contractual forms clearly delineate, define, and assign tasks and risks to the involved parties. The premise under which these agreements are based are that the legal system contrasts the work of design as a professional service and that of construction as an obligation guided by contracts and warranty.

The whole idea behind standard contracts is the summary of design data into tools of service which the contractor gives the client for their use. The client is the determinant of how adequate the document is. Although electronic information is increasingly shared, there persists a separation between design and construction. Even as design data is regularly transferred digitally, the hard copy still remains the frame of reference for control of information. This brings about inefficiencies and is viewed as dysfunctional where information and risk are shared.

As the integrated practice develops, contractual documents also need to do the same so as to identify assigned and mutual responsibilities for the design information generation, sanction valid dependence on the data, allocate the task of updating and archiving the database as well as supply of recompense for the risks, efficiencies, services, and savings produced.

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