By AIA Contract Documents
June 16, 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 4: BIM as a Contract Document – Can it be done?
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. Part 3 of our series explained how the AIA’s new BIM documents are structured to facilitate this risk management strategy. In this article, we will take a deep dive into one important aspect of the new BIM documents: BIM as a Contract Document.
Currently, the common practice is for design teams to use models internally to meet their contractual obligation to generate 2-D drawings. Models might be shared with other project participants, such as the contractor, but the models are usually accompanied by a disclaimer stating that the model cannot be relied upon. As a result, contractors and others may have to generate their own model if they want to use BIM during the construction or post construction phases. This process is arguably inefficient. Proponents of allowing a model to be enumerated as a Contract Document have argued that it will help to unlock the full potential of modeling and streamline the design and construction process. Opponents of allowing a model to be enumerated as a Contract Document, on the other hand, have argued that permitting reliance on a model could have far reaching and unknown risk implications, especially if the model is used for a purpose unknown to the model author.
The owner and contractor typically enumerate the documents that will be considered “Contract Documents” in their agreement. In the AIA Contract Document family, this enumeration occurs, for example, in Articles 1 and 9 of A101-2017 and is reinforced in Section 1.1.1 of A201-2017. The decision to enumerate a particular document as a Contract Document is a significant one and carries with it many implications. Even though it may seem more efficient and unlock more of the benefits of modeling, the decision to enumerate a model as a Contract Document should be made only after thorough consideration of all the consequences.
By way of illustrative example, consider the following. A201-2017 states that the “Contract Documents form the Contract for Construction.” (Section 1.1.2). Therefore, if a model is enumerated as a Contract Document, it becomes part of the Contract for Construction. In that same section of the A201, the parties agree that the “Contract may be amended or modified only by a Modification.” Modifications are, by definition, (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive, or (4) a written order for a minor change in the Work issued by the Architect.” (Section 1.1.1). The implication is that every time the model is changed, a formal Contract Modification would need to occur. With the hundreds or thousands of changes made to a model each day, it would be impractical to issue a Contract Modification (i.e., a Change Order) each time. As discussed below, the E201-2022 corrects for this issue.
As another example, consider the contractor’s obligation to “perform the Work in accordance with the Contract Documents.” (A201-2017 Section 3.1.2). The implication of this requirement is, of course, that a contractor is in breach of its contract if it fails to perform the “Work” in accordance with the Contract Documents. The construction industry has developed to allow the contractor to reference a static set of drawings when performing their “Work” and, thereby, perform their Work in accordance therewith. However, arguably, a contractor cannot reasonably be expected to perform their Work if their reference document (the model) is constantly changing. Again, as discussed below, the E201-2022 corrects for this issue.
The examples above are just two out of potentially dozens of implications that enumerating a model as a Contract Document has. However, the E201-2022 is structured with many features to account for these implications and provide predictability and clarity.
The first feature, which is found in all the 2022 BIM exhibits, is the addition of the terms “Model Version” and “Model Portion.” Model Version is defined as “a specific edition of a Model or Model Portion that is sufficiently identifiable as unique and unchanged as of the time it is saved by its Author” and Model Portion is defined as “a subset of a Model [which may be designated] by discipline, trade, area, location, phase, or other mutually agreeable distinction.” Model Versions are, in essence, a model in a single point in time, whereas Model Portions are a subset of a model. In E201-2022, parties may agree that “only a single Version of [the] Model Portion may be enumerated as a Contract Document.” In this way, E201-2022 eliminates some of the problems described above because the “model portion” that is enumerated as a “Contract Document” is static – only a single version of that portion is a Contract Document. The parties then agree that “A Model Version enumerated as a Contract Document shall only be changed or replaced through the modification process set forth in the agreement between the owner and contractor for the construction of the Project,” but the need to engage in that modification process is not triggered each time a change is made within the model – rather, formal modifications are only needed when a new version is being issued as a Contract Document from which the contractor will perform its “Work.”
The second feature is a limitation on the types of reliance placed upon models. As stated above, one of the primary concerns surrounding model sharing and, in particular, enumerating models as a Contract Document is that the model will be relied upon in an untended manner. E201-2022 is designed to protect against this risk. Specifically, the parties identify particular uses for which models will be developed and agree that “the extent of their reliance on any Model Version shall be limited to the uses identified  and in accordance with the BIM Execution Plan…” In this way, all project participants understand the specific uses that can, and cannot, be applied to all of the project’s model portions. This shared understanding helps to increase clarity and, thereby, decrease risk.
As stated above, enumerating a model – or, more accurately, a model version – as a Contract Document has many implications. For those who wish to enumerate their model portions as a Contract Document, they now have the option of choosing the E201-2022 as their BIM exhibit and, therein, clarifying which model portions are eligible for enumeration, the extent of reliance that can be placed upon those model portion, and how and when those Contract Document model portions will be modified.
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 5 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.