Ashbaugh Beal lawyers: “Collaborative construction contracts carry unique risks that must be allocated”

L -R: Tymon Berger & Tristan Swanson. Credit: Ashbaugh Beal
L -R: Tymon Berger & Tristan Swanson. Credit: Ashbaugh Beal

Earlier this week, Australian media outlet Sourceable addressed an often overlooked side of the proverbial coin relating to Building Information Modelling, looking at potential risks that are created following the implementation of BIM. Another article following a similar path has now been published elsewhere, posing more food for thought.

Tymon Berger and Tristan Swanson of US law firm Ashbaugh Beal have taken to the Daily Journal of Commerce to discuss the “irresistible temptation to collaborate on a virtual model”, the carrot that BIM dangles in-front of AEC professionals, if you will.

The authoring pair believe that although BIM “promotes efficient collaboration by providing all of the participants an economic benefit”, a brand-new on-site tool on-site – the virtual model – means that contractors are now open to more risks due to a lack of understanding from a legal perspective.

“The shared financial benefits from BIM collaboration provide a natural incentive for more collaboration. But this collaboration means new risks and potential liabilities because in most cases, businesses continue to model their risk allocation within the traditional assumption of compartmentalization,” notes the article.

Berger and Swanson continue: “Given that BIM, collaborative contracts, and design-by-shop drawing are the norm for today’s private construction projects, the question is, do your contracts and insurance policies properly spread and bear the risks and liabilities that accompany this new way of building?”

Citing the American Institute of Architects (and providing a rather interesting insight into industry regulations in the United States, the duo elaborate: “Both the American Institute of Architects and ConsensusDocs provide standard BIM addendums. But a contractor will want to review these contract provisions with an attorney experienced in this area before using these off-the-shelf addendums.

“Both addendums allocate risk in ways that are not always suitable for the particular project or contractor, and as such, may require modification.”

The issue of liability is also raised in another interesting extract: “Whether providing construction management services, design and constructability advice through BIM modeling, or design through shop drawings, these services must be covered by a combination of general and professional liability.

“Collaborative construction contracts carry unique risks that must be allocated and insured against. Traditional contracts and commercial general liability policies aren’t enough. If you have been operating under a business-as-usual approach when providing professional services, now is the time to make important risk management changes.”

To read the entire article, click here.

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