Lexpert Special Editions

Special Edition on Infrastructure 2016

The Lexpert Special Editions profiles selected Lexpert-ranked lawyers whose focus is in Corporate, Infrastructure, Energy and Litigation law and relevant practices. It also includes feature articles on legal aspects of Canadian business issues.

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10 LEXPERT | 2016 | WWW.LEXPERT.CA THE DESIGN AND CONSTRUCTION of projects can suffer from conflicts arising from the interactions of design compo- nents from different project participants and these conflicts oen give rise to costly and time-consuming litigation. While Building Information Modelling (BIM) has been touted as a platform that allows for collaboration between designers and builders and mul- tidimensional model management, from a liability perspective it is easy to see why project participants may be wary of sharing infor- mation, overlapping of designs or subsequent design revisions by others and the reliance they can place in the model. is article explores what BIM is and how to minimize the risks of using BIM on a project. BIM involves creating a three-dimensional digital representa- tion of a proposed construction project. is representation in- cludes information on all the physical and functional character- istics of the facility and its related project/life-cycle information, making use of "smart" drawings. ese parametric objects simu- late real objects such as steel beams, wooden framing, drywall and all other materials that go into the building's construction. ese "smart" drawings operate on a set of geometric rules that allow changes to one part of the design to affect other parts of the drawing. For instance, if the architect increases a doorframe's height by a foot, the "smart" drawings automatically increase the ceiling and walls in proportion. BIM is used both during the construction of a facility as a set of "smart" drawings that simulate the facility and aer completion of the project as an information repository for the owner or opera- tor to use and maintain throughout the life-cycle of the building. e "smart" nature of BIM means that changes to the design of the project are most easily (and cost-effectively) done at the start of the project, before construction begins. General Motors, for example, used BIM for the construction of its Flint Global V6 Engine Plant expansion, relying on the general contractor and subcontractors early in the design process to develop the design. e project was completed 25 weeks faster than it would have been with a tradi- tional design-bid-build method using traditional drawings. However, using BIM may also expose designers, contractors and owners to additional liability. Many of the parties contributing to and using the BIM may not have any privity of contract. ere is oen a lack of formal process for sharing of information and de- sign. Disclaimers oen accompany models, stating that the model is only for "informational purposes" and limiting reliance. ese factors can create an environment in which contractors and de- signers are unsure of the legal effect of BIM use on the traditional design-bid-build model and wary of unforeseen liabilities. In the United States, the construction industry developed stan- dard form contracts in an attempt to address the concerns of BIM participants. Two such forms are discussed below. ConsensusDOCS 301 BIM Addendum e first contractual supplement to incorporate BIM in the US was the ConsensusDOCS 301 BIM Addendum (the Consensus Addendum) released on June 30, 2008. e Consensus Adden- dum was the product of industry-wide stakeholder input, with rep- resentatives from the design community, contractors, owners, sub- contractors, construction lawyers and other parties contributing to its draing. Rather than create a new, independent standard-form contract for projects using BIM, the draers craed the Consensus Addendum as a supplementary document that would attach to and modify standard-form agreements. One of the Consensus Adden- dum's major purposes was to apportion design liability when using modern technologies such as BIM using the following guidelines: • Each party is responsible for any contribution it makes to a BIM or that arises from that party's access to that BIM; • Further, each party is responsible for any contributions made by a party for whom it is responsible, such as a general contractor re- sponsible for the work of a subcontractor; • Each party agrees to waive claims against the other party to the governing main contract for consequential damages relating to, or arising out of, access to the BIM; and • ere is a positive duty on each party to use their best efforts to minimize the risk of claims and liability arising from the use or access to the BIM. AIA Document E202 – 2008 Subsequent to the Consensus Addendum's release, another stan- dard-form BIM appendix was developed in the United States. Unlike the Consensus Addendum, the American Institute of Ar- chitects' Document E202 – 2008 (the AIA Document) attempts to establish more certainty concerning the liability of the partici- ANDREA W.K. LEE, GLAHOLT LLP BUILDING INFORMATION MODELLING CANADIAN DEVELOPMENTS

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