BIM IS EVOLUTION – SO WE HAVE TO EXPECT CONSTRUCTION DISPUTES TO EVOLVE TOO

24Jul17

By JASON DOUGHERTY

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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.

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