BIM Bubble Bursts

Last week, Engineering News-Record (ENR) reported on a lawsuit centered on the use of building information modeling/management (BIM) for a university life-sciences building (ENR: A Cautionary Digital Tale).  Although construction lawsuits appear almost every day, this one has greater significance because it could well be the first case where the use of BIM was determined to be the mitigating factor that created the problem—in other words, this is new legal ground for the design and construction industry.

The facts, as they are currently made available, indicate that the design team—the architect, along with their mechanical, electrical, and plumbing consultants—used BIM to integrate the building’s systems in a plenum space under very tight tolerances.  In order to make it all fit, the contractor would need to install the systems in a specific sequence; however, the contract documents did not convey that sequence.  When the contractor attempted to install the work as indicated in the contract documents, the systems would not fit.  The contractor sued the owner and the owner sued the architect.  That’s the situation in a very tight nutshell.

There are two items that strike me as being very significant about this lawsuit: 1) the delivery method was design-bid-build, so the contractor had no involvement in the development of the model, and 2) design professionals are generally warned against specifying means and methods. 

I’ll start with the latter item.

Specifying means and methods in a set of construction contract documents puts additional risk on the preparer of the documents—the design professional—thus, the practice is usually avoided.  The theory behind that position, which is supported by many professional liability insurers, is that if the contractor follows the means and methods indicated in the contract documents, and subsequently the work fails, then the contractor is covered by the implied warranty established under the Spearin Doctrine (United States vs. Spearin, 248 U.S. 132, 1918).  Therefore, the contract documents typically indicate what the final results of the construction should be and leave it to the contractor to determine how to get there.

In the context of this lawsuit, the design team was working with a double-edged sword.  We know the result of not specifying the means and methods for installing the systems, but let’s assume the design team did specify the exact installation sequence.  If the contractor followed the installation as specified and it still did not work, whether great or small, then the contractor would have been covered by the Spearin Doctrine and the design team would still be responsible for the error.

Let’s step back and take a look at this from another perspective.  What if BIM was not used on the project and the design team increased the plenum depth to allow greater tolerance for installing the building’s systems?  Wouldn’t the building have to be taller, thereby adding construction cost?  Wouldn’t the increase in interior volume of the building require additional cooling and heating, thereby increasing construction and operation costs?

There are many buildings constructed that are much more complicated than a university life-sciences building.  Yet, rarely on those complex projects does the design team specify the construction sequence.  The design team’s responsibility is just that—design.  Design professionals have a basic knowledge of constructability issues; that is why owners hire contractors—contractors are supposed to know how a building goes together and in what sequence.  Why should the design team tell the contractor to “install pipe ‘A’ before duct ‘B,’ but only after installing conduit ‘C’”? 

The ENR quotes the architect’s liability insurer as saying, “If you don’t use BIM correctly, you can get into trouble.”  That could be said for any tool, whether it is CADD or the old pencil-and-paper method.  From the details presented, it appears the design team did use BIM properly; they made efficient use of space to reduce cost of the project.  What happened is the contractor failed to analyze the contract documents and coordinate the installation by consulting with the applicable subcontractors to establish the best approach for installing the work as indicated in the contract documents.  Did that coordination take place?  We don’t know.  Did the contractor attempt to communicate with the design team to discuss possible installation strategies?  Again, we don’t know.  This leads to the first item I mentioned:  the delivery method.

The best design environment for using BIM on a project is when the project is developed using a collaborative approach—when all project team members (owners, designers, contractors, and suppliers) are involved in the decision making.  The design-bid-build delivery method is definitely not a collaborative approach.  Bidders on a project are not privy to the multitude of decisions that are made during the design of a building.  They only have what’s in front of them: a set of bidding documents and a short period of time to put together a price and construction team, which most likely has never worked together before on a project.

Negotiated, design-build, CM-at-risk, and the latest, integrated project delivery (IPD), are delivery methods more suited to a collaborative approach to building design and construction.  They bring each of the project teams together early in project development.  Then, when the permits are pulled and construction begins, everyone involved understands the project in great detail with very few unknowns remaining.  The collaborative approach is even more enhanced when the contractor utilizes BIM as a tool for constructing the project, such as for shop drawing integration, scheduling, and costing.

The details on the lawsuit are few (we don’t even know the parties involved), so a true critical analysis of the lawsuit’s impact on the construction industry and BIM probably will not be coming any time soon.  In addition to the questions I mentioned earlier, there are many others that need answers in order to better formulate an honest criticism of BIM.  These questions include:

• Did the owner require the use of BIM to design the project?
• Why was the design-bid-build delivery method selected?
• Did the contractor have the capability to use the model?
• Did the design team provide any guidance to the contractor during installation?
• Were there errors in the model that would have prevented the installation of the work as indicated in the contract documents?

Until answers to these and other questions are revealed about BIM’s involvement in this lawsuit, the jury in the case of Traditional Methods vs. BIM should remain in deliberation.

Comments

[Tom Montero, FCSI, Member Emeritus, CDT, AIA]

The use of BIM to confirm that "everything will fit" should be just a tool for the A/E. Had the supplemental conditions and the conditions of the MEP-FP sections required the contractor to provide coordination drawings for the systems, the A/E BIM documents could have been used as a reference for the A/E to respond without providing the BIM drawings. In the A/E response to the submitted coordination drawings, they could have "suggested" that the contractor "consider" certain means of installation without making the "suggestions" contractual. The A/E should ALWAYS require coordination drawings for systems installation. That way, if a problem arises during installation . . . guess who bares the burden of proof and expanse? Obviously not the A/E.

[Ron Geren]

Tom, I agree. As I mentioned, there are many open questions about this case. Hopefully, the architect had specified that coordination drawings be prepared and submitted. If the architect did specify those requirements, then that would lead to other questions, such as: Did the contractor submit the required coordination drawings? If so, did the design team do a proper review?

There is so much that is unknown about this case that it is really hard to make a solid judgement. Until more information is made public, I doubt this case would have much bearing on the future use of BIM.