Risk and Liability of BIM

Today, John Tocci spoke at NAIOP’s Risk Liability of BIM panel. Laura Handler, Director of VDC, summarized the panel discussion on her (bim)x blog:

This morning, I attended NAIOP’s Identifying the Risk and Liabilities of BIM panel discussion – which included Michael Herlihy (Ames & Gough), John Sullivan (SG&A), John Tocci (Tocci), and Bruce Tribush (Goodwin Procter). Interesting discussion, here are a few of the questions and the thoughts from the panel.

Bruce Tribuse: How does BIM change the standard of care?
John Sullivan: The BIM Execution Plan is the contractual way to define roles. If done properly, it doesn’t impact the standard of care.

BT: So is BIM the standard of care?
JS: Yes. For large, complex projects, why wouldn’t you use the best tools and process?
John Tocci: The standard of care has changed. Although there is no known litigation, there are arbitration where the design team has been accused of not using BIM therefore not meeting standard of care. This may not be easy and it may not be cheap, but firms will experience increasing risk if they don’t adopt these tools.
Michael Herlihy: Insurance is typically “review-view mirror” oriented. It appears that BIM reduces risk, but the standard is still the standard.
What is the model’s status as a contract document? What is its priority ascompared to other documents?
JS: We try to look at the model as the final work product. Contractually, it usually has higher priority, but that should evolve.
Who owns the model?
JT: The owner.
What are the issues regarding early subcontractor and contractor services?
MH: For the overall project, it reduces risk to have input from contractors and subcontractors. However, as they are providing advice and model content, they may be doing so without coverage – especially if they don’t have Professional Liability insurance.
How does BIM impact the Spearin doctrine?
BT: The Spearin doctrine comes out of a 1918 US Supreme Court decision; by issuing plans, specifications, and information, the owner implies that the information is free from deficiencies – and that the contractor isn’t liable to the owner for loss or damage resulting from those deficiencies.
JT: RIP Spearin doctrine. However, for contractors to participate in a collaborative BIM process, they need to be educated in architectural history, good design principles, code, requirements, and the design process.
How can owners help with this process?
JT: For one, get informed. Ask questions. Learn about BIM and IPD. But also, learn how to ask for it. You won’t get the value if you merely ask for ‘5 lbs of thinly sliced’ BIM.

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