Analysis

BIM is evolution - so we have to expect construction disputes to evolve too

6 September 2015 | By Jason Dougherty

The overarching goal of Claims, Disputes, and Litigation Involving BIM is to provide a pragmatic exploration of the analysis of construction claims and disputes under the new lens of BIM/VDC.

Disputes and construction projects have a mutual attraction – and it would be naive to think BIM can totally reverse a 4,000-year tradition. So Jason Dougherty, author of Claims, Disputes, and Litigation Involving BIM, says both lawyers and BIM professionals need to be alert.

The AEC (architecture, engineering and construction) industry is incredibly complex, volatile and competitive. In a word, design, engineering, and construction are risky. Throw a dart at a map of the world and one will typically encounter a local AEC insurance and legal eco system with established rules of engagement for addressing issues of “mine” versus “yours”. 

Disputes in design and construction are a fundamental element of the industry with a very long history. For example, the Code of Hammurabi, a Babylonian law code dating from the 18th century BC, contains a series of provisions dealing specifically with construction disputes. For the modern era, putting a precise figure on the total value of global construction disputes would be a fool’s errand, but research suggests that, globally, recent annual amounts in controversy have collectively been worth billions of pounds. 

Lest there be a tendency to moralise, even “good” projects might have claims and disputes. Change is a fact of life in design, engineering and construction projects. And while a claim won’t necessarily lead to litigation, almost all contracts in the AEC industry are written to address the tendency towards change in the designing and construction of things. 

But wait, BIM technologies and virtual design and construction (VDC) processes, with their inherent transparency and collaborative approach, will surely enable clearer anticipation and better management of change in the first instance, thereby reducing the potential for claims leading to disputes and potential litigation? While popular reports from early case studies appear to support the claims reduction thesis to a certain degree, some evidence from other BIM/VDC-enabled projects reveals construction disputes to be alive and well. 

In light of all the above, the overarching goal of my recently-published book, Claims, Disputes, and Litigation Involving BIM is to provide a pragmatic exploration of the analysis of construction claims and disputes under the new lens of BIM/VDC. 

Part of the thesis is that while each domain of knowledge (the legal profession and the AEC industry) has recently explored and analysed BIM/VDC for their core constituents, a majority (not all) of popular literature on the topic as produced by either side has neither fully dissected nor explained their respective topics of interest by engaging the vocabulary of the other.

Therefore, this book is intended to be a handbook towards bridging the divide between technology and law with respect to BIM/VDC by utilising the explicit vocabulary and deep bodies of knowledge of each. Is it possible that certain claims in the era of BIM/VDC will cease? Will new claim types evolve, and if so what will they look like?

It is the investigation into questions such as these, not necessarily definitive answers, that are critical for the AEC industry because the use of BIM/VDC can profoundly and directly alter the production, delivery, and constitution of construction documents/drawings, quantity surveys, budgets/estimates, field execution methods, and project schedules – each of which are central and critical components in the analysis of claims and disputes.

Accordingly, the primary objectives of this book are to:

  • present an overview of the typical construction claims environment in the US;
  • investigate the continually evolving standards of care and workmanlike performance for design and construction professionals using BIM/VDC;
  • provide industry professionals with a useful and practical tool and reference for effectively considering and analysing construction claims and disputes on projects utilising BIM technologies and VDC processes.

To accomplish these objectives this book is divided into two parts. Part I prepares the groundwork by examining traditional construction claims. By providing a brief survey of the types of typical claims, the damages sought, and examples of typical associated contract clauses and/or case law, the reader is equipped with a baseline vocabulary and mindset. Next, a broad overview of the typical BIM/VDC tools, workflows, and processes of both designers and contractors is presented.

Part II considers construction claims in an era of BIM/VDC. This process begins by evaluating what reasonably describes current baseline standard of care and workmanlike performance for BIM/VDC. This is accomplished through a review of primary (standard contracts) and secondary (BIM guidelines, etc.) source documents.

Next, a categorisation of BIM/VDC as it relates to legal concepts and possible claims issues is offered. The book concludes with a presentation of typical methods and techniques for analysis of claims and considers their applicability for potential claims that might encounter BIM/VDC.

The reader in search of absolutes will be forced to contend with the reality that this work, like any other, reflects a snapshot in time and that the BIM/VDC stream moves extremely fast for an industry not accustomed to speed when addressing anything new.

Jason Dougherty, a territory manager for Autodesk, is a BIM/VDC specialist with over a decade of practical experience across the entire construction industry. Claims, Disputes, and Litigation Involving BIM is published by Routledge