BIM’s rise in design has brought about new legal considerations for designers.

By Aidan Ackerman, ASLA 

With the increasing adoption of Building Information Modeling (BIM) in landscape architecture, questions have begun to arise around issues of ownership, liability, and accountability that are not easily answered by current professional standards and contracts. Who is legally responsible for the information contained in different parts of the BIM model? Who is allowed to use the information in a BIM model after the project is complete? How can landscape architects using BIM protect their intellectual property? Many of these questions have been bubbling since BIM first began to be adopted by the profession.

The first documented legal claim based on use of BIM in the United States was settled in 2011. The lawsuit derived from construction problems owing to installation sequencing information contained in the BIM model that was not communicated to the contractor. As with many construction-related claims, the case was settled out of court, in part because the project liability insurer did not have confidence that a jury would understand the nuances of BIM. Since 2011, other BIM-related claims have been made by designers, contractors, and owners, covering everything from construction issues to intellectual property. The legal implications of using BIM are beginning to take shape, as evidenced by increased coverage in standard design contracts, numerous articles on the various legal aspects of using BIM, and user-focused publications such as Jason Dougherty’s 2015 book, Claims, Disputes, and Litigation Involving BIM.

One way to track the legal impacts of BIM is through the changes in standard design contract forms. The 2019 ASLA standard contract does not mention BIM, though the American Institute of Architects’ standard contract forms—often used in some form by landscape architects—provide specific language addressing BIM. To better understand the legal aspects of how BIM is addressed in design contracts, I spoke to Steven Sharafian, an attorney and partner at Long & Levit LLP in San Francisco, who provides risk management services to architects, engineers, and landscape architects. “As technology develops, industry forms start to evolve and change,” Sharafian says. The AIA standard contracts and forms are updated every 10 years, with the first version of the form dating back to 1888. Although the differences between versions of the documents are often small, subtle shifts tell a story about the evolution of a technology. “If you look at the difference between the 2017 and the 2007 B101 [the Standard Form of Agreement Between Owner and Architect],” says Sharafian, “the 2007 form says that the parties may enter into the digital building information modeling protocols. The 2017 form says they shall.” This shift from discretionary to required use of BIM forms on a design project means that any parties using the Standard Form of Agreement without any modifications need to ensure that actual practices align with contract terms—or risk being in violation of the signed agreement.

BIM models often live on beyond the design process. Because they contain useful data, some clients require the handover of the digital file at project completion. A benefit of handing over the BIM file is the opportunity to give important project information to the people who will be performing ongoing landscape maintenance, helping to ensure the project’s long-term success. Another benefit is competitiveness: To miss out on landing a big project to avoid giving away a BIM file is difficult to accept. Yet there are some potential drawbacks to BIM file handover, such as the exposure of proprietary information or the possibility of being opened up to liability if the BIM model were ever to be abused. “Under common law and under federal statutes, design professionals usually own their intellectual property—considered instruments of service,” Sharafian says. “As the author of the instruments of service, the designer retains certain rights to their intellectual property.” Whenever a client requests access to a BIM model as part of project closeout, it’s critical to craft a contract that clarifies what the landscape architect retains. “Technically, when you give up everything to a client, whether it be the ownership of the documents or the intellectual property, you divest yourself of those things,” Sharafian says. “Most owners really don’t want that, and most design professionals don’t intend that. But from a legal point of view, you need to be really careful.” Sharafian says that it is important to develop clear contract language to ensure that the designer doesn’t inadvertently relinquish rights to design aesthetics or techniques that have been developed over an entire career. These instruments of service “may embody design characteristics that are associated with that professional,” Sharafian says. “You don’t want an architect to agree that they can’t use a design solution or aesthetic for other clients.”

Robert Anderson, ASLA, runs his own landscape architecture practice and uses Vectorworks for BIM modeling. He collaborates with other firms on project management, construction, detailing, and documentation, and consults with landscape architecture firms including McGregor Coxall in Sydney on developing their BIM practice. Anderson is located in New York State, where—as in many U.S. states—there is a 10-year statute of repose for a claim to be brought against an architect or engineer. According to the New York Civil Practice Law and Rules (CPLR) Section 214-d, claims for personal injury, wrongful death, or property damage that are based on the professional performance, conduct, or omissions of the architect may be brought up to 10 years after the completion of the project. This open-ended exposure means that Anderson must be especially vigilant about how his design information could be used in the future. “The beauty of BIM is the life cycle part,” he says. However, when thinking through whether he could be liable for ways that his models are used several years from now, Anderson says that there is confusion about what the implications are. Could future mismanagement of the landscape based on poor interpretation of BIM model information cause harm that could be linked back to the designer? At the moment, the law is not clear on this. “Some of my clients are starting to ask these questions,” Anderson says. “All I can say is that’s a great question, and we need to talk about it.”

BIM models usually contain project-specific information that does not end up in construction documentation, ranging from custom design features to modeling and fabrication techniques. Anderson says he has some concerns about sharing such proprietary information through BIM, and the way in which digital collaboration might include risk of losing legal ownership of modeling techniques. In his design work, Anderson uses Marionette, which is Vectorworks’s Python-based parametric scripting tool. “If I write a Marionette script to describe how a paving pattern works, that script is now in my Vectorworks file,” he says. This means that anyone with whom he shares his Vectorworks project could view his Marionette script as well. “That bit of coding that you spend time creating—a parametric design that is unique to that project—once you hand that file over, you lose control of it.”

Jessica Henson, ASLA, an associate at OLIN, also wrestles with how BIM files share proprietary information. OLIN Labs, the firm’s research group, engages in research and development, creating custom code, workflows, scripts, and tools for landscape architecture design. Henson says that she and others at OLIN often discuss the proprietary nature of the tools they have developed, and how they are shared through the BIM workflow. “When we work with other consultants or architects sharing our models each week, they have access to everything,” she says. “Maybe that’s okay—we spend thousands of hours developing a tool, and then maybe we share it. Maybe it’s great that we’re developing leading-edge tools for how landscape architects interact with technology.”

OLIN has been using BIM since 2010 and creates approximately 50 percent of its construction sets in Revit. Over the years, the firm has evolved how it handles legal issues in its workflows. One area of focus for OLIN is the BIM model’s Level of Detail and Level of Development, both referred to as LOD. BIMForum, a U.S.-based organization that explores global BIM innovation, defines LOD as follows: “Level of Detail is essentially how much detail is included in the model element. Level of Development is the degree to which the element’s geometry and attached information have been thought through—the degree to which project team members may rely on the information when using the model.” Agreement about the LOD between parties at the outset of a project can help set expectations about what different areas of a BIM model should provide. Contractually, says Henson, “We are very conscious of what we’re committing to in terms of the level of detail of the model, and what’s reasonable or necessary to have.” Not going overboard with detail can be difficult in the world of BIM, where every railing or curb can be illustrated down to the smallest feature. “We don’t want to overdetail and then have it lead to issues about the level of detail the model is intended to operate at,” Henson says. “Just because you can model something doesn’t mean it should be modeled.”

The potential for a design project to experience construction problems or long-term issues can often be greatly reduced through consistent internal review of documents at all stages of the design process. Internal review of design documentation at design firms often occurs through the QA (quality assurance) and QC (quality control) process, which ensures accuracy and compliance with codes, regulations, constructability, estimates, ordinances, and standards. As OLIN has adapted to the way that Revit works, the process of digitally marking up design documents has changed. “If you’re used to redlining a CAD set and there’s a line that’s not supposed to be there, you might write a note saying freeze this layer,” Henson says. “In Revit, there’s no such thing as layers—you’d need to say turn that family off in visibility and graphics.” What used to be a process of reviewing paper or PDF documents now involves opening up a Revit file. “We have people in our office who use Revit every day, yet not everyone does,” Henson says. “They may not know enough about Revit to even know what’s possible, which makes it difficult to do a QA/QC review. Historically, we could all do it when it was on paper.” OLIN has responded with increased training to ensure that as many people in its office as possible understand BIM, from the 3-D modelers to the people who are involved in contracts and specifications. “We put a lot of effort into making sure that people at all levels have a familiarity with Revit,” Henson says. “They may not be using it every day, but they are able to discuss its capacities and parameters.”

Collaboration is one of the most compelling aspects of BIM, but it is also one of the most confusing from a legal standpoint. Clark Thiel, a partner at Pillsbury Winthrop Shaw Pittman LLP in San Francisco, understands this confusion well. Thiel leads his firm’s Construction Counseling & Dispute Resolution practice and is also a licensed contractor and registered architect. If a project runs into construction issues, could the collaborative aspects of BIM lead to disputes about who is responsible for a specific part of the design? According to Thiel, “That’s certainly what’s going to happen. No one’s taking ownership, and everyone is working in the model.” The primary issue with this is that there is often no single designated person responsible for coordinating BIM workflow among designers. This can be especially problematic when legal issues arise several years after construction is complete. “Because nobody owns the model, no one’s going to accept responsibility for it,” Thiel says. “It’s going to be a problem that comes up during construction, or after construction as a defect or a failure.”

With the potential for many different individuals to alter a single BIM model, who should be held responsible for changes that are made to the file? It is important to consider whether a BIM model carries a similar legal burden as construction documents. “When the BIM model is not the official contract document, the fact that someone changed something in the model in and of itself is of no legal relevance,” Thiel says. “The legal relevance is that somebody took what was in that model and used it to make decisions.”

Following this argument, if contractors were to refer to a BIM model in the field in place of traditional construction or shop drawings, the fabrication and installation drawings created by contractors and submitted to architects to plan the project’s actual construction, would this alter the designer’s legal responsibility for the contents of a BIM model? With the availability of BIM model review software such as Solibri and Autodesk Navisworks, in-field contractor review of BIM models is a distinct possibility. According to Thiel, this is not a significant legal concern, as he views the BIM model as functioning in the same way as shop drawings. “Traditionally, contractors build from the shop drawings,” he says. “Shop drawings are not legal documents.” If you think of BIM models as performing the same role as shop drawings, you can ensure the legal foothold of the official construction drawing can remain secure. Thiel confirms this. “I have not seen any project where the BIM model is considered to be a contract document.”

What does Thiel see coming down the road? “For BIM to be truly used for its full potential,” he says, “there needs to be a single owner of the model, with full responsibility for everything in that model. Without that, BIM will be nothing more than an imaging device.” In such a scenario, the organized flow of information among designers, clients, and contractors would flow systematically through a designated design professional who takes on ownership of the BIM model and all that it entails. Thiel envisions a future where every design project has such a person, one who can clarify any questions about liability or ownership of design work. “There needs to be someone who says, ‘I am responsible for everything that goes into the BIM model.’”

Aidan Ackerman, ASLA, is an assistant professor of landscape architecture at the State University of New York College of Environmental Science and Forestry.