BIM Emerging as Construction's Legal Standard of Care

At a May 2011 buildingSMART alliance Collaborative BIM Breakfast meeting, James Salmon, Esq. explained Building Information Model making is emerging as a new legal "Standard of Care" in the U.S. justice system for design professionals.

Providing a presentation on Integrated Project Delivery, Salmon described a recent case he helped settle out of court by showing a Building Information Model that would have alerted the team to problems in the pre-construction phase before they surfaced in the field.

The legal team engaged Professor Hector Camps, RA, who teaches Building Information Model making at Miami Dade College. Camps created a virtual model of the troubled project based on the original, 2D construction documents. The 3D model clearly showed the problems that eventually arose in the field. 

The defendants were shown Building Information Models that depict design problems before construction. The legal team indicated they would tell a jury that if the entities responsible for the construction problems had made a Building Information Model, the issues would have been identified and addressed before they manifested in the field. The case was settled out of court.

Salmon says, "Traditionally, a professional standard of care is applied to a professional community in a specific locality. A rural doctor may be held to one standard of care while a doctor practicing at John Hopkins might be held to a higher standard of care. The same is deemed to be true of design professionals as the Ohio Administrative Code makes clear."

The Ohio Administrative Code states "... a registered architect shall act with reasonable care and competence and shall apply the knowledge and skill which is ordinarily applied by registered architects of good standing, practicing in the same locality."

Salmon says, "The 'locality' of competent design professionals is quickly being redefined by the Internet and ubiquitous access to information regarding Integrated Project Delivery, Building Information Models and Lean processes on the web. In the professional community I frequent, Hector Camps exercises the level of professional care expected of a reasonable design professional. As a buildingSMART alliance board of direction member, he is aware of and demonstrates proven business practices."

Salmon added, "Others will have a different Standard of Care. But in my community, if you hire professionals who understand and engage in proven BIM business processes, you won't go to court. You will build the building virtually first. Your collaborative partners will help you resolve problems and you will share in financial rewards for achieving team goals."

Salmon indicated building industry professionals have been advised in the past not to share their Models for fear of being sued. "Now, it is possible to be sued if you do not use Building Information Modeling software in a manner consistent with emerging industry standards," Salmon says. "You might be embarrassed if your Model is inaccurate, but it is better to be embarrassed and have a successful project than it is to be sued for not having a Building Information Model."

There is no one way to gain the numerous benefits available from creative application of BIM software and business process developments occurring on a regular basis. A good way to keep apprised of emerging benefits and the various ways to take advantage of them is to join the buildingSMART alliance: www.buildingsmart.org

 

James Salmon is an experienced construction lawyer and president of Collaborative Construction Resources, (CCR) a company committed to helping the construction industry use collaborative agreements, BIM and lean construction methods to deliver construction services more efficiently and productively. Find out more at his Collaborative Construction Blog

See more about Professor Hector Camp's educational material at www.phicubed.com

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