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WWW.LEXPERT.CA | 2016 | LEXPERT 11 pants and requires the creation of defined "levels of development" (LOD) of BIM. e AIA Document sets out the requirements for model content at five progressive LODs, and the authorized uses of the model content at each LOD. Each LOD is assigned a Model Element Author. Presumptively, responsibility for properly preparing each LOD rests on the Model Element Author. In the AIA Document, the project architect is the default Mod- el Manager from the inception of the project. e Model Manager acts as a gatekeeper for the project's BIM by checking the correct- ness of the three-dimensional model; overseeing access rights of parties to areas within their expertise or to specific stages in the design and construction process; and updating the contract docu- ments in accordance with changes to the BIM. However, the role of Model Manager may be assigned to a different party at a par- ticular phase of the project, allowing management of the model to mirror the Model Element Author for each LOD. The IBC 100-2014: BIM Contract Appendix Until recently, there was no simple way to incorporate BIM into construction contracts in Canada. Oen parties would attempt to create their own contractual language or use standard forms from the US without necessarily understanding the potential risks and liabilities. As a result, BIM was initially minimally used in Canada. It was therefore aer great anticipation that the Institute for BIM in Canada (IBC) released a contract appendix (the IBC Ap- pendix), which was modelled on the AIA Document and tailored to the Canadian market's needs. e IBC Appendix is a standard fillable PDF form, designed to be appended to RAIC 6-2006, ACEC 31-2009, CCDC 2-2008 standard-form contracts. e companion documents to the IBC Appendix are the IBC 201- 2014, LOD Authorized Uses and Model Element Table. It is contemplated that the parties to a project will enter into the IBC Appendix when the principal agreement between the owner and architect or the owner and contractor is executed, and the Appendix may be included in the "Other Terms of Contract" or "Contract Documents" sections of the principal agreement. Al- ternatively, if a BIM requirement is added at a later date, the IBC Appendix can also be later appended to the prime contract. is provides the parties with some flexibility at the project's outset. Key Provisions e IBC Appendix includes several provisions that make it a ro- bust addition to standard-form contracts used by the Canadian construction industry. ere are a few key provisions, including section 1.5 of the IBC Appendix, which allow for parties to the project to require each other to prove that the IBC Appendix has been incorporated into other contracts on the same project. is ensures that BIM will be used as desired by all parties and that each party's rights and obligations are clearly set out. Section 1.9 clarifies that participation of the contractor and subcontractor(s) in the modelling process does not constitute design services unless otherwise specified as these parties may be reluctant to assume liability for design issues that they otherwise would not have. is provision allows contractors and subcontrac- tors to provide their input, which greatly assists in the construc- tion of the design. e IBC Appendix also contains several provisions addressing copyright of model elements, the licences of other parties to use such elements during their modelling and risks of making altera- tions. For example, section 2.5 states: Each Model Element Author grants a non-exclusive license to Andrea Lee al@glaholt.com | (416) 368-8280 > Ms. Lee is a partner of Glaholt LLP. Ms. Lee has significant experience representing owners, general contractors and consultants in proceedings involving liens, delay claims and professional negligence claims. Ms. Lee has acted as co-counsel on international and local arbitrations, conducted both under institutional rules and ad hoc. Ms. Lee regularly advises owners, architects and engineers with respect to professional services contracts. She speaks frequently on various construction law topics to industry professionals, provincial associations, universities and colleges. each of the Project Participants to use Model content for design and construction purposes for this Project only. e license includes the right to alter content of a copy of the Model for the purpose of creating a derivative Model. Such alterations are at the sole risk of the Project Participant making the alterations and the Model Ele- ment Author shall have no responsibility for any alterations made to the Model Element Author's content. Section 3.3 of the IBC Appendix provides that following the es- tablishment of a Protocol, if a party's use or reliance on the model is inconsistent with the defined authorized uses, such use or reliance is at its sole risk. Section 3.9 contains a clear waiver of consequen- tial damages as a result of any modelling activities that will curtail much of the uncertainty revolving around parties' participation in a project using BIM. e IBC Appendix requires agreement between the parties to a Protocol that governs issues such as identity of "authors" and us- age of design. Section 5.2 of the Appendix prescribes the five mini- mum requirements of a Protocol: (1) identification of the Model Element Authors, (2) definitions of the LODs and associated Au- thorized Uses for each LOD at each Project milestone, (3) identifi- cation of the Project milestones, (4) the construction classification system to be used on the Project (5) and a Model Element Table indicating the LOD to which each Model Element shall be devel- oped at each identified Project Milestone and the Model Element Author at each milestone. Section 5.3 of the Appendix provides the parties with an option to use either IBC 201-2014 (which provides a standard form for most of the Protocol's requirements) and the IBC's Model Element Table or their own form of Protocol. Conclusion While BIM is still a relatively young and evolving tool in Canada, many concerns regarding usage and liability have been addressed by the development of standard-form contract appendices. ere has been only a handful of reported litigation involving BIM in North America from which one might conclude that the coopera- tive approach by all project participants is working, despite fears of shiing liabilities. Contractual appendices, such as the IBC Ap- pendix, are extremely useful tools as they help parties to turn their minds to their respective roles and responsibilities and address the risks associated with BIM from the outset. e early establishment of participants' expectations, reliance on contract documents and effective communication are critical to the success of any project, particularly in a collaborative environment. BUILDING INFORMATION MODELLING

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