Advancements in technology, fueled by long held aspirations for efficiency, are transforming the way in which we build. The Integrated Project Delivery (IPD) method evolved from this process to combat inconsistencies in project construction from the very start of a project's lifecycle. IPD achieves this goal by emphasizing teamwork, and streamlining the design process via dynamic devices and collaborative, open discourse between the owner, architects, engineers, and contractors. On the forefront of IPD, a tool of choice for team players is Building Information Modeling (BIM), which allows multiple participants to collectively merge their cooperative efforts into an intelligent, interactive, digital model. The U.S. General Services Administration already requires all new and major modernization projects receiving design funding to submit plans using BIM modeling.
This innovative progress, however, also carries unique legal and practical concerns that participants and the legal community must address. Despite these challenges, the advantages of IPD and BIM outweigh their shortcomings, and will allow the construction industry to forge a new platform for project delivery that is built to last.
Sharing A Vision
IPD allows all essential players in a project to collaboratively plan through frequent and regular communication. The primary participants (the owner, architect and general contractor), and the key supporting participants (typically the subcontractors, design consultants, and engineers) all cooperate to make decisions at every phase of design and construction based on the best interests of the project, furthering the owner's goals. Because of this emphasis on cooperation and dialogue, selecting team players who have experience working with each other, or compatible styles and software, is crucial.
To ensure the elimination of conflicts of interests, the primary participants are all bound to each other by contract, and each key supporting participant is contractually bound by the relationships that exist between the primary participants. Since every participant's financial success hinges on the entire group reaching a common goal, the participants all benefit from project success.
A Change Of Plans
Now, imagine being part of an IPD team, designing and building a structure from a virtual, 3-D model that simulates every data point that each participant inputs, from the exact cubic yards of excavation to the layout of the structural steel and coordination of the mechanical, electrical and plumbing systems. Not only does each part of the model reveal intelligent information about its design and usage with just one click of a mouse, but the model collectively illustrates the project's complete life cycle, from design to maintenance. This is the dream that BIM realizes.
BIM is a tool that requires IPD. By entering data into BIM software, project participants work in concert to form a digital plan that accurately portrays the project and its components. Fusing data points from all participants, BIM software allows users to immediately view any conflicts in the design, or to alter a part of the project and instantly observe how the change impacts the other components involved.
Ground-Shattering Strides
Combined, IPD and BIM offer construction professionals extraordinary efficiency. BIM minimizes paperwork, information loss, data conflicts and integration and dimensional errors, while IPD forces participants to work as a team and address potential conflicts before they arise. As a result, the IPD/BIM combination is effective in reducing scope changes, preventing schedule delays and trade conflicts, maintaining owner's budget, and avoiding costly litigation.
IPD enhanced by BIM eliminates the need for cross-referencing and coordinating a litany of drawings or relying on abstract, computer-aided drafts and light tables. Important revisions can be stored electronically, and multiple users can access the model at any time to eliminate information gaps between users and across phases of construction. By structuring the 3-D plan in accordance with the project's schedule, the 4-D product provides all participants with accessible oversight.
Legal Stumbling Blocks
However, while IPD and BIM have clear advantages, they create new dilemmas in the contract review phase of a project, which are not currently addressed by standard form agreements that the industry utilizes. The American Institute of Architects, the Associated General Contractors of America, the American Institute of Steel Construction, Inc., and other industry organizations are currently working on addressing IPD- and BIM-related issues, especially those involving electronic communications and licensing, but many legal issues still remain.
For instance, due to the digital nature of BIM plans, the inability to fully integrate them into the contract documents raises questions regarding their legal function - should participants only contract to use BIM among themselves and continue to use 2D drawings as part of the contract documents? Should the BIM only be agreed upon as part of the IPD method in the contract? Perhaps BIM should solely be used for design coordination amongst architects, engineers and contractors and not considered part of the contract documents, which contractors base their pricing, but this would undercut some of the advantages of BIM. Further, relying on electronic communication opens the gateway for software defects, corruption of electronic files, and software compatibility problems, which lead to other practical considerations that should be addressed in the contract agreement.
A cumulative work product formed by a coalition of participants also makes attributing liability and risk to a single party from an interdependent team a challenge. This uncertainty raises issues as to third party reliance, privity of contract, the duty to preserve evidence during litigation, insurance, indemnification, warranties, waivers, disclaimers, and releases. Also, because BIM software minimizes errors and inconsistencies, courts may eventually decide to hold industry professionals using BIM to a higher standard of care.
In addition, because all parties openly disseminate critical design information that may be altered, copyright, intellectual property rights, confidentiality protocols and the legal significance of receiving or transferring documents are also of major concern and will need to be addressed. And, although IPD team members may want to shift as much liability as possible through contract negotiation, when it comes to ownership of a joint creation, the participants likely will want legal rights over more than their fair share.
Despite these legal quandaries, the revolutionary effectiveness of IPD and BIM provides the construction community with a strong impetus for working with legal counsel to resolve these issues. To this end, case law and standard form contracts currently provide few answers. Available case law suggests that in IPD disputes, ultimate liability will rest on the facts of each particular case, rather than on default principals of liability. IPD/BIM parties therefore have much to gain from bulletproofing their contracts. Any industry professional that desires to join the cutting edge of design and construction should consider retaining construction savvy legal c counsel before implementing BIM.
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