Those Who Can, Must: Reflections on BIM, Collaboration, Schedules and the Law
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.”
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.
Because of Spearin, the engineer's "mock CPM" should not be shared with the contractor.
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).
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?
Construction have not keep up with the changes in information technology. Architects and engineers have shed their responsibilites and liabilitites to the others making them less and le...
June 30, 2011
Construction have not keep up with the changes in information technology. Architects and engineers have shed their responsibilites and liabilitites to the others making them less and less relevant. It may be less of a problem if the architects and engineers take on the increased responsibilites and perform more design/build services.
The issue noted in the article - insufficient ceiling space - was simply an engineering error - not a BIM error. While BIM should have made the error more apparent to the engineer and t...
June 30, 2011
The issue noted in the article - insufficient ceiling space - was simply an engineering error - not a BIM error. While BIM should have made the error more apparent to the engineer and the contractor - it was not the reason. No experienced designer would ever purposely design a ceiling sandwich so tight that it could only be obtained with a certain sequence of installation nor would any competent contractor forego the normal MEP coordination drawing effort required on a project to determine fit and sequence of above ceiling installation. No CPM or 3,4 or 5D BIM would have solved this error as those involved were not sufficiently qualified to spot the problem until construction was ongoing. To call this the first BIM lawsuit does a disservice to the tool. Like anything out there its only as good as the operators (Engineer and Contractor). I have come to believe that a project needs two independent BIMs - one by the designer created and used to resolve design issues and communications and a second by the contractor to address constructability, clearances, staffing, sequencing and schedule as neither entity has the expertise nor the inclination to support the others BIM.
AE work in the United States and Internationally, carry "duty-of-care" as the British say, to provide a clear picture of what the building will look like when it is finished. If that i...
July 2, 2011
AE work in the United States and Internationally, carry "duty-of-care" as the British say, to provide a clear picture of what the building will look like when it is finished. If that is the stated intent of AE documents and Means And Methods still rest solely with the Contractor, then it is fully agreed with lbyrd02 that, "...that a project needs two independent BIMs - one by the designer created and used to resolve design issues and communications and a second by the contractor to address constructability, clearances, staffing, sequencing and schedule as neither entity has the expertise nor the inclination to support the others BIM." Co-labor is the key phrase here, collaboration. If in Design-Build, then do the AE and Contractor both work for the Owner or is the AE a subcontractor to the Contractor? If the latter then there is not only responsibility but also duty to that Employer, the Contractor to share critical information relative to design and whether the design drawings fulfill the intent of showing a clear picture of how the building will look after it's built and whether will the valve(s) be accessible by maintenance staff as defined in the AE design drawings. Careful here!!
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? Supplemental/Special Conditions to FIDIC internationally and AIA contracts within the USA, have been added on job-by-job basis requiring this and general responsibility by both AE and Contractor as the contracts are deeply customized.
Good responses! Thank you!
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? Supplemental/Special Conditions to FIDIC internationally and AIA contracts within the USA, have been added on job-by-job basis requiring this and general responsibility by both AE and Contractor as the contracts are deeply customized.
Good responses! Thank you!
