AIA Contract Documents BIM Series Part 2: The Knowledge Divide

By AIA Contract Documents

May 4, 2022

Later this year, AIA Contract Documents will unveil their new digital practice documents that deal with the terms and concepts surrounding the use of a building information model, or “BIM.” In the leadup to this release, the AIA Contract Documents program is publishing a series of articles talking about all things BIM. This is Part 2: The Knowledge Divide – What is it? And How to Manage Risk Around it.

As explained in Part 1, BIM is increasingly being woven through the fabric of every design and construction project. Therefore, it is becoming progressively more important for those who negotiate contracts to understand the nuances of BIM and – on the other side of the divide – for those who engage in modeling to understand the nuances of their contract terms. This, in essence, is the “knowledge divide.”

Those individuals with positions to negotiate contracts terms—attorneys (in-house and outside counsel), firm owners, senior executives, and contract managers—understand just enough about the design and construction industry and the project to have meaningful discussions about the services being provided. They need to understand the services to manage the risk they are willing to accept, which will be reflected in the accompanying legal terms. For example, if a particular project will include earthwork and geotechnical analysis, then they need to know enough about the pitfalls of later discovering differing site conditions to be able to intelligently handle the terms in the clauses on these topics. But with the years of practice that it takes to master an understanding of specialty and engineering sciences (and the specific degree of craft necessary to produce proper BIM), it is understandable that the contract negotiator’s knowledge of the practice can be limited. These contract negotiators stand on one side of the knowledge divide.

On the other side of the knowledge divide stand those who engage in day-to-day modeling. For these individuals, they are primarily concerned with perfecting their craft of modeling by producing the best model they can. But they may be unaware of the contract terms to which their firm’s negotiator has agreed—even terms related to BIM.

BIM used to be one of those topics that contract negotiators could disregard. BIM didn’t have a large impact on their firm’s risk. Likewise, the contract terms could be disregarded by the modelers because those terms had no impact on their day-to-day work, since BIM was essentially a tool they used on the drafting floor. Given this framework, there was no real need to build a bridge over the knowledge divide.

Times are changing. The industry has evolved such that BIM is now a critical and integral tool for projects. Greater use of, and reliance on, models is impacting everyone, including both contract negotiators and modelers. By way of example, a contract negotiator could unwittingly agree to allow their firm’s model portion to be shared and used for quantity takeoffs, and the modelers within that firm may be unaware of this agreement. Therefore, the modelers may construct the model wherein the underlying quantities may not be correct even though the two-dimensional (2-D) output is. When another project participant asks for the model, the modeler might do one of two things: first, they might balk at sharing, knowing that some underlying quantities may be inaccurate because their model had been created primarily to generate 2-D drawings, and they then realize a significant amount of work will be required to reconstruct the model for that purpose; second, the modeler might share it immediately, ignorant of the anticipated use(s) and the issues that will surely come when the quantity take-offs prove to be in error. Both scenarios place a lot of risk on the firm, and both responses are caused by the knowledge divide. This is just one example of the emerging risks inherent in BIM.

So, how do firms span the knowledge divide? How do they and manage this risk? In general terms, contract negotiators should consider acquiring enough high-level knowledge about BIM—both globally and as it pertains to their firm – to understand the risk implications of BIM-specific terms and clauses in design and construction contracts and, likewise, modelers should consider gaining enough knowledge of design and construction contracts—again, both globally and as it pertains to their firm – to understand the risk implications of their modeling efforts. One specific approach that firms can consider on a project-by-project basis is to conduct internal, pre-negotiation discussions where contract negotiators meet with their modelers to discuss and understand the anticipated approach to BIM on a particular project. Armed with that knowledge, the negotiators can effectively craft contract terms that reflect their firm’s capabilities, scope of services, and expected model uses.

Notably, the AIA Contract Documents program’s new Digital Practice Documents will help to span the knowledge divide for all project participants. Also, the AIA Contract Documents program recently presented a 60-minute panel discussion about the Knowledge Divide, which can be viewed here. Lastly, you can read more about the AIA’s Digital Practice Documents in the Guide, Instructions, and Commentary.

Stay tuned for Part 3 of this article series, where we will provide a general introduction to the AIA’s new BIM documents!

AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors. Any language quoting from AIA Contract Documents that have not yet been released is subject to change before final publication.