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Abdirad, H. (2015) Advancing in Building Information Modeling (BIM) Contracting: Trends in the AEC/
FM Industry. AEI 2015: pp. 1-12; American Society of Civil Engineers. doi: 10.1061/9780784479070.001
INTRODUCTION
Building Information Modeling (BIM) implementation is increasingly recognized
as a best practice in the construction industry as it provides a new set of processes and
technologies to improve productivity and efficiency in construction projects. BIM
facilitates digital simulation of a project, from early design stages to the facility
operation phases by integrating the required information for design, construction, and
facility management (Aouad, Wu, & Lee, 2011; Eastman, Teicholz, Sacks, & Liston,
2011). As a new trend in project realization, BIM implementation necessitates
developing a new context of technological, organizational, and procurement
processes. In this regard, Andre (2011) indicates that this novelty in BIM
implementation raises special legal and contractual issues that new contracting
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approaches should address. This was the motive for developing BIM standard forms
of contract, as the conventional forms of agreement had not dealt with BIM
implementation challenges (Larson & Golden, 2008; Lowe & Muncey, 2008b).
So far, two industry leaders, AIA and AGC, have developed BIM contracting
standard forms to address BIM contracting requirements. These include
ConsensusDOCS 301: BIM Addendum (ConsensusDOCS., 2008), and AIA E202 2008: Building Information Modeling Protocol Exhibit (American Institute of
Architects, 2008). However, prior research has identified some issues as the
challenges to widely use the standard forms in the industry:
These all show that there is an extensive gap in the research on BIM contracting in
the industry to satisfy the need to examine the trends and to set the grounds for
improvements.
Therefore, the purposes of this paper are to review BIM contracting advances in
the industry, and to extract contractual provisions from industry wide custommanuscripts, which can fill the gaps in the standard forms of BIM contracting. In this
regard, this paper reviews the literature on basics of BIM contracting and major
contractual provisions in standard forms of agreement to define the comparison basis.
In the data collection stage, the authors will review custom manuscripts to identify
different areas of importance in real-world implemented BIM contracts. Finally,
authors develop a framework to present contractual provisions that BIM standard
form of contracts have not addressed in their developments. Such a framework would
facilitate the development of special contractual provisions in BIM-enabled projects.
The result of this research will also set the stage for further advancing existing BIM
standard forms of agreement.
LITERATURE REVIEW
According to Ashcraft (2008), the industry should consider BIM as a construction
delivery method that introduces new technologies, processes, and relationships into
the industry. However, new technologies and processes are usually primary risk
sources in design and construction projects. Hence, this novelty in BIM
implementation raises special legal and contractual risks that new contracting
approaches require to mitigate them (Andre, 2011).
One challenge to mitigate the risks is the lack of standard contract documents that
can provide a framework for risk and reward allocation, and reduction of contracting
inefficiencies and transaction costs (Ashcraft, 2008). Words & Images (2009)
highlights that BIM contractual language must deal with two important risk
categories, including (1) the project participants behavior in BIM processing, and (2)
issues in BIM technological aspects. Ashcraft (2008) confirms that legal concerns in
BIM arise from BIM technologies and the way project participants use them. BIM
behavioral risks may include collaboration issues, the efficiency level of
collaboration, and synergic information development. Technology-related risks arise
in forms of model level of reliance, model accuracy and contents, model management
and maintenance, and model ownership (Words & Images, 2009). Thus, Sinclair
(2014) states that BIM contractual provisions are dependent on levels of BIM
maturity. A higher level of BIM maturity should address more issues and more
complex details on BIM implementation because the responsibilities, relationships,
collaboration level, and technologies are different at each level (Sinclair, 2014).
So far, two standard forms of BIM contracting have been developed in U.S.
construction industry, ConsensusDOCS 301-BIM Addendum and AIA E202-2008:
Building Information Modeling Protocol Exhibit.
ConsensusDOCS 301 developers intended to support conventional standard forms
of agreement, instead of drafting a whole new set of documents for BIM. The reason
is that conventional contracts are widely accepted and used in the industry for
decades, and changing them could result in further problems (Lowe & Muncey,
2008b). According to Lowe and Muncey (2008b), BIM addendum intention is to deal
with existing issues in computer-aided information delivery, and to address unique
BIM implementation issues that are new to the industry. Although AIA E202 is
written primarily to support an integrated project delivery (IPD) contract, it may also
be used on traditional delivery methods as an attachment to existing general
conditions of contracts. (American Institute of Architects, 2014).
BIM CONTRACTUAL PROVISIONS
In this section, by reviewing both contract forms as well as prior research, the
authors present major contractual issues in BIM contracting. Chien, Wu, and Huang
(2014) described that risk management through contract documents should address
three general response strategies, including (1) developing clear and comprehensive
contractual provisions (especially for the requirements and expectations) , (2)
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considering insurance and measures that protect contracting parties, and (3)
developing provisions for possible damages. According to the literature, there are
some fundamental contractual categories in BIM contracting. First, the contracting
parties have to discuss the status of models to determine to what extent parties
consider a BIM model as a contract product/document (and its priority over other
documents) (McAdam, 2010). Duty of care is the category that consists of issues in
model ownership, copyrights, authorized and unauthorized uses of models and edocuments, and the level of exposure of the special trade information (Ku & Pollalis,
2009; Lowe & Muncey, 2008b; McAdam, 2010; Olatunji, 2011). These provisions in
contracts for intellectual property rights are important in BIM implementation
because the models can easily be transmitted, extracted, and reused (in a whole or in
parts) (Lowe & Muncey, 2008b).
In case of using BIM tools and developing BIM models, interoperability,
standardization, modeling requirements (e.g. level of details, level of dimensional
reliance, etc.), and clashes and conflicts are the issues addressed in BIM contracts (Ku
& Pollalis, 2009; McAdam, 2010; Olatunji, 2011). Data security is essential to avoid
snooping, theft, virus and worms, and hacking (Olatunji, 2011). However, BIM
contracting standard forms have addressed none of these issues. In regard to BIM
implementation, one major concern of industry participants is the fear of changes in
roles and responsibilities. Liabilities and responsibilities of project participants in
model development, model accuracy, BIM specific processes, model management,
new roles (e.g. BIM Manager), and additional services are also important (McAdam,
2010; Olatunji, 2011). According to Lowe and Muncey (2008b), using a BIM
contracting form as an annex to principal forms of contracts between parties preserves
conventional contractual relationships, roles, and responsibilities. However, all parties
would involve in BIM-related processes, tasks, and responsibilities (Lowe & Muncey,
2008b).
According to the literature and the contract documents, there are many similarities
between the two BIM contracting forms (AIA E202 and ConsensusDOCS BIM
addendum). Requirements for information and model management, model ownership,
copyrights, and model standards are addressed in both forms. However, the contents
and the level of details are different. McAdam (2010) confirms that AIA E202
contains less detail than ConsensusDOCS 301 in most categories. For instance, both
forms require an information manager (or model manager), but its obligations are
delineated in more detail in the ConsensusDOCS 301 (McAdam, 2010). There are
also several important differences between the standard forms:
The most significant aspect of AIA E202 its handling of the models
substance. It defines five Levels of Detail (LOD) for the modeled elements
(Ashcraft, 2008; McAdam, 2010).
ConsensusDocs
301
AIA
E202
custom drafted documents was found; and (2) Most of the BIM contractual categories
and BIM requirements in them were similar to the standard forms (but in different
wording). Therefore, finding non-standard specific provisions required a thorough indepth review process. Finally, the author decided to limit their data collection process
up to the point that 20 valid custom manuscripts, which have introduced non-standard
contractual categories.
FINDINGS
This section presents a framework of contractual provisions that standard forms of
have not addressed in their developments. Some contractual provisions in standard
forms of contract are open to negotiations and agreed upon between participants in a
meeting (McAdam, 2010). Hence, in some areas, the forms do not exactly specify the
requirements, and they just bring up the concepts (e.g. file formats). The author
excludes such provisions from the findings as the standard forms have addressed them
but exact requirements are not defined. Although most custom manuscripts have
incorporated standard provisions in their developments, many non-standard
contractual provisions are developed in custom manuscripts, as Table 2 presents.
Table 2: Categories that have not been addressed in BIM standard contract forms.
Contracting Category and Reference
Description
1. Corruption of Files (Bay Area Problems in retrieving information; Transmit bad
Headquarters
Authority,
2012; files (e.g. viruses); Data theft, vandalism, loss.
Wheatley & Brown, 2007)
2. Data Confidentiality (Andre, 2011)
Limiting data types in transmissions, and keeping
specific types of data confidential (e.g.
contractors cost estimates and production rates).
3. Data misuse (Ashcraft, 2008)
Using models for out of scope purposes
4. Data Translation / Interoperability Liabilities in the cases that data translators do not
(Ashcraft, 2008)
transfer all required information.
5. Obligation to have BIM staff on-site / Requirements for BIM staff at a job-site/coco-location of BIM staff (Bay Area located office.
Headquarters Authority, 2012)
6. BIM staff competencies (Bay Area Experience, Education, Professional Trainings,
Headquarters Authority, 2012)
etc.
7. Provisions for use of Laser Scanners Using
BIM
tools
other
than
BIM
as BIM tools (As-Built Models) (Bay authoring/coordinating tools; e.g. Laser Scanners
Area Headquarters Authority, 2012)
for As-built modelling/ documentation.
8. Defining or restricting different For Example: Use models for functional and
model uses to limit liabilities and visual representation of spaces; quantities;
misuses (Bay Area Headquarters constructability review; clash detection and
Authority, 2012)
resolution; 4D simulation; construction site
Logistics (AIA defines four major uses, including
construction, analysis, cost estimating, and
schedule).
9. Right to delegate BIM related For BIM Management, BIM Modeling, BIM
activities/ Right to transfer models to Processing and Maintenance, etc.
subcontractors/sub-consultants (Bay
Area Headquarters Authority, 2012)
14. BIM
Training
(Bay
Area
Headquarters
Authority,
2012;
Princeton
University,
2012;
shwgroup, 2012)
15. Requirements to furnish lists of any
required clearances for model
components (Division of Facilities &
Construction Management, 2010)
16. Special modeling for clearance spaces
(shwgroup, 2012)
17. Defining
Coordination
System
Priorities (Swinerton Builders Inc,
2010)
Description
For Example: Hosting BIM files; periodical
updates; site performance (capacity, function).
Distribute instructions to the team.
For Example: Online meetings, virtual
coordination teams. Tools such as smart boards
may be used to view documentations and models,
create and archive mark ups interactively, and
convert them to RFIs etc.
For Example: For modelling and software
selection- Industry Foundation Class (IFC)
For Example: how contractors will ensure
coordination is occurring between project
members; and how contractors will enforce the
use of BIM during construction and installations
of building systems.
For Example: providing BIM trainings to other
project participants (on-site staff); Requirements
to attend BIM training classes; Ensuring technical
proficiency of subcontractors, etc.
Subcontractors should submit their requirements
to the general contractor. They can develop
clash/clearance detection matrix (Gresham
Barlow School District, 2013)
Required clearance for installation and future
maintenance of all equipment, and they are
modeled as colored/semi- transparent solids.
If agreement cannot be reached in system
coordination, a guideline will be used to resolve
conflicts between trades. E.g. descending order of
priority: 1- architectural and structural
components; 2- Equipment shown on the
mechanical or electrical trade which cannot be
relocated; 3- Equipment or devices requiring
access for maintenance , etc.
For Example: Space Management/ Tracking, Fire
/Life Safety data parameter requirements,
Warranties, Operations and Maintenance Data/
Furniture and equipment move order/ Egress
plans/ Hazardous material plans, etc.
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Ku, K., & Pollalis, S. N. (2009). Contractual Standards for Enhanced Geometry
Control in Model-Based Collaboration. Journal of Information Technology in
Construction, 14, 366-384.
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Introduction to Contracting for BIM.
Lowe, R. H., & Muncey, J. M. (2008a). BIM Contracting Made Easy: The
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10.1108/17561451011087337
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in North America.
Mincks, W., & Johnston, H. (2010). Construction Jobsite Management: Cengage
Learning.
Olatunji, O. A. (2011). A Preliminary Review on The Legal Implications of BIM And
Model Ownership. Journal of Information Technology in Construction.
Princeton University. (2012). Princeton University BIM Specification. Princeton
University,, U.S.
San Diego Community College District. (2010, Feb 26 2014). BIM Standards for
Architects, Engineers & Contractors. San Diego Community College District, U.S.
shwgroup. (2012). Addendum # 2 to Plans and Specifications for Clara Love
Elementary 2013 Additions Northwest
Sinclair, S. (2014). Building Information Modelling (BIM) and English Law A
Handbook for Construction Planning and Scheduling (pp. 367-370): John Wiley &
Sons, Ltd.
Swinerton Builders Inc. (2010). Contract Attachment M Virtual Design &
Construction Guidelines.
UGA. (2013). Modifications to General Requirements of BOR Contracts.
http://www.architects.uga.edu/sites/default/files/pdf/standards/Supplemental%20G
eneral%20Requirements.pdf
USACE.
(2012).
Building
Information
Modeling
Requirements.
https://cadbim.usace.army.mil/BIMContractRequirements
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Modeling. The Construction Lawyer, 27(4), 33-36.
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Operating in a New Paradigm: Foundation of the Wall and Ceiling Industry.
Wu, W., & Issa, R. (2013). Integrated Process Mapping for BIM Implemenation in
Green Building Project Delivery. Paper presented at the 13th International
Conference on Construction Applications of Virtual Reality, London, UK.
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Agreement. Canada.
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