By AIA Contract Documents
June 7, 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 3: An Introduction to the AIA’s New BIM Documents.
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.” Part 2 of our series dove deeper into this knowledge divide and provided some risk management strategies to overcome it. Now, let’s talk about how the AIA’s new BIM documents are structured to facilitate this risk management strategy.
The AIA Contract Documents Committee spent multiple years updating the 2013 BIM documents, which included the G201-2013, G202-2013, E203-2013, and C106-2013. The Committee interviewed and received feedback from scores of BIM experts to understand how this aspect of the industry was changing to determine what sort of language the new BIM docs should include. Throughout this years-long effort, the Committee elected to make a few significant changes to the BIM documents, discussed below.
The new BIM documents will have a different structure than their predecessors. In 2013, the parties completed both an E203-2013 exhibit (which outlined the parties’ understanding with respect to establishing the parties’ expectations for the use of digital data and BIM on the Project and providing a process for developing the detailed protocols and procedures that govern the development, use, transmission and exchange of digital data and BIM on the project) and a G201-2013 exhibit (which contained provisions related to protocols and procedures that govern the transmission, use and exchange of digital data on a project). Then, throughout the project, the parties could incorporate a G202-2013 exhibit (which contained provisions related to protocols and procedures that govern the development, transmission, use and exchange of building information models on a project).
The Committee has streamlined the exhibit process by combining the essential terms of the E203-2013, G201-2013, and G202-2013 into a single exhibit, which will be provided in multiple different versions depending upon the extent of model sharing on the project. The exhibit will set forth the parties’ agreement on a few critical “big ticket” items, such as the extent of model sharing across the project, permitted model use(s), and confidentiality and intellectual property issues.
After an exhibit is selected, the parties will then complete a BIM Execution Plan. Yes – you read that right! The AIA Contract Documents program has created a BIM Execution Plan. After the parties agree upon the “big ticket” decisions in their exhibit, they can begin to make, and document, the more granular decisions related to model sharing in their BIM Execution Plan, such as how models will be named and saved, when and how model files will be updated/uploaded, software requirements, data security measures, and modeling protocols. The BIM Execution Plan, in turn, can incorporate a Model Element Table if the parties will be using one to designate their Levels of Development.
The E201-2022 is intended to be used when Models will be shared among all Project Participants, and some Model Versions will be enumerated as a Contract Document. With the evolving nature of the construction industry, it is reasonable to assume that Models, or – to be more precise, Model Versions – will be increasingly used in the same way that traditional 2D drawings are now: as Contract Documents. However, the decision of whether to permit a Model Version to be enumerated as a Contract Document is significant and has many consequences. Therefore, the new E201-2022 gives Project Participants the ability to explicitly permit or prohibit certain Model Versions to be enumerated as Contract Documents. As a result, since the same E201-2022 is attached to all of the contracts throughout the Project, all Project Participants are aligned in their understanding as to the extent of reliance on particular Model Versions. This unified understanding allows Model Authors to structure their modeling services and fees accordingly.
The E202-2022 is intended to be used when Models will be shared among all Project Participants, but E202-2022 does not permit Model Versions to be enumerated as a Contract Document. Many of the other terms of E202-2022 are similar to E201-2022.
Unlike E201-2022 and E202-2022, E401-2022 is intended to be used when Models will be shared solely within the Design Team, which is defined as “the Architect, its Consultants, Subconsultants, and Sub-subconsultants, at any tier.” In this regard, E401-2022 anticipates a more “siloed” approach to Modeling, where the Design Team creates and distributes Models within the Design Team only, and those Models are not intended to be shared with the Owner or any member of the Construction Team.
Similar to the E401-2022, the E402-2022 anticipates a more “siloed” approach to Modeling. Specifically, the E402-2022 is intended to be used when Models will be shared solely within the Constuction Team, which is defined as “the Contractor, its Subcontractors, and Sub-subcontractors, including fabricators, at any tier.” When using the E402-2022, the Construction Team can share Models within the Construction Team only, and those Models are not intended to be shared with the Owner or any member of the Design Team.
BIM execution plans are, by their very nature, Project Specific. G203-2022 is intended to serve as a framework from which the Project Participants can create a Project-specific BIM Execution Plan. In this regard, G203-2022 contains multiple fill points and is intended to stimulate conversations and document decisions surrounding how the Project Participants will utilize BIM on their Project. All of the BIM exhibits contain language requiring the Parties to adhere to their BIM Execution Plan. Acting in a similar manner to a Project schedule, although the BIM Execution Plan is not intended to be a contract exhibit, Parties are contractually obligated to adhere to its terms.
C106-2022 is similar to C106-2013, with some minor modifications.
Also added were some Model Element Tables, which will be discussed in more detail in a later article.
The AIA Contract Documents program recently presented multiple 60-minute panel discussions about the Knowledge Divide and the risks surrounding model sharing. You can also read more about the AIA’s Digital Practice Documents in the Guide, Instructions, and Commentary. Stay tuned for Part 4 of this article series, where we will dive even deeper into 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.