Because it matters…(part three)

Now that we have developed some understanding of the ideas underpinning BIM, and the risks and opportunities it can give rise to, it is time to turn our attention to the liabilities and exposure that might be created using a BIM-style approach.

If it all goes wrong can someone claim against me?

The idea behind BIM is to create a dynamic and collaborative design production process. With descriptive words like dynamic and collaborative explaining the process it is a pretty safe bet that there will be an expectation of speed in there as well. The potential for things to be missed therefore increases, and with this, the risk. To provide some balance and comfort, the CIC Protocol promotes the idea of a “claims free environment”. The employer or developer gains from the BIM process but for that gain he takes a greater share of the risk created by the process.

However, “claims free” doesn’t exactly mean “claims free” as there are a number of exceptions to the general principle in the CIC Protocol. Liability for simply getting the design wrong, for a designer that means just breaching your design contract, is not covered by the “claims free environment”. Where part of the designer role is clash identification that would not be covered by the “claims free environment”. Neither is a breach of intellectual property rights covered.

There are some further exclusions of liability that fall outside the idea of a “claims free environment” focussed on not warranting the integrity of data delivered in accordance with the protocol or on software issues arising after transmission in accordance with the protocol. These are dealt with below.

He stole my intellectual property!

Protection of intellectual property rights is clearly important to any designer. Not just so that they can proudly hold themselves out as the only designer of the left flange widget in the third floor stairwell but also so that it is clear what design they have produced, and are therefore liable for, and what design might have been mucked about with by others.

Given that the BIM process involves integration of design, dealing with who owns what intellectual property within a complete model can be complex. The CIC Protocol addresses this with the concept of permitted purpose. As long as a design is being used for a specified permitted purpose, that use will not breach any intellectual property right, as everyone gives a license related to the permitted purpose. The use of any part of the design at any stage of the integration and design development process may be different. Therefore, the explanation of permitted purpose will need constant review.

The interplay between the intellectual property rights position in the BIM protocol being used, and in the main contract governing the design services, will need careful consideration. This is particularly the case as, for example, the CIC Protocol will override the underlying design contract position on intellectual property.

A virus in the BIM model?

The CIC Protocol provides that no warranty is given as to the integrity of any data delivered in accordance with the protocol. Failing to follow the process leaves you exposed. Also, transmitting a virus may not be caught, as a virus may not relate to the integrity of the data.

The CIC Protocol also provides that there is no liability for alteration or corruption after transmission in accordance with the protocol. Again the process is key but virus, which would exist before transmission, would not be caught by this exclusion of liability.

See also:

Because it matters…(part one)
Because it matters...(part two)