Our last post focused on the first step in digital practice: creating a BIM Exhibit. Once the contracting parties attach that exhibit to the design and construction contract forms, they have to expand the agreement on model sharing and reliance issues through a project-specific BIM Execution Plan (“plan”). The AIA Contract Documents program created G203-2022, BIM Execution Plan, for that purpose.
G203 contains multiple fill points so that parties can discuss and document their decisions on how they will use BIM on their project. All of the BIM exhibits contain language requiring the parties to adhere to the negotiated plan. The plan is similar to a project schedule in that it guides common project efforts, although the plan is not a contract exhibit. Still, the parties are contractually obligated to adhere to its terms because of the earlier executed exhibit attached to their contracts.
Information can be safely shared with others
The AIA also offers C106-2022, Digital Data Licensing Agreement, because not all parties involved in the design and construction process have the BIM exhibit attached to their contracts. C106 serves as a licensing agreement between two parties who otherwise have no existing licensing agreement for the use and transmission of digital data, including instruments of service. The document defines digital data as information, communications, drawings, or designs created or stored for a specific project in digital form. C106 allows one party to grant another party a limited non-exclusive license to use digital data on a specific project and sets forth procedures for transmitting the digital data, including restrictions on the license granted. The agreement also allows the party transmitting digital data to collect a licensing fee for the recipient’s use of the data.
Authorization and limited right-of-reliance protects fees, data, and designs
As BIM use becomes more common on projects of all sizes, it is critical that all parties (including those who want to use the digital data under a limited license) understand the requirement to authorize all data for use—the parties must stipulate the right-of-reliance of the data.
The new digital practice documents do not replace the design team’s instruments of service with a model. Instead, the agreements allow the design team to specify when to use portions of the model or other digital data to describe specific components. There is no requirement to deliver an entire model.
The E-series (the BIM Exhibits for sharing model information) and G-series documents are exhibits to the owner-architect and owner-contractor agreements. They give the design team the discretion to define what digital information they will provide so that it can be a planned and scheduled activity accompanied by appropriate compensation. The project participants establish the rights to use specific digital information and document that in the BIM exhibits to the core agreements to limit their risks.
There is no link between increased data sharing and increased claims
While many design professionals have a basic concern about design copyright and unauthorized use of their intellectual property, claim information does not substantiate this fear. When CADD became the first significant change in the creation and documentation of design, firms were very protective of their information through onerous licensing arrangements. With BIM, many firms felt even more at risk and often prevented the productive sharing of information because of their concern that professional liability claims based on detrimental reliance on the BIM information were likely to result. That, however, has not been the trend.
Another common fear is the concern that the receiving party will modify or tamper with the data in some way, leading to: the built work being non-compliant with the design intent; changes that violate building codes and standards; or, creation of an unsafe condition, with any of those leading to future claims. Experience has not substantiated this fear either.
Part of the value and strength of the new digital practice documents are the tools and guidance they provide to establish and negotiate how to use digital design data on a project. Firm principals are responsible for negotiating with their clients and contractors before design starts to define the exact processes, limitations, and uses for the digital design data. As with negotiating every professional services agreement, review agreements closely and secure appropriate legal advice to keep BIM exposures both reasonable and foreseeable and to match compensation with services and risks.