Construction Law Signal - Insights & Information on Current & Emerging Developments affecting the Construction Industry

By: Jennifer M. Horn

Construction owners and managers are utilizing computer tablets such as the iPad more and more on the job site to help streamline business. Engineering News Record posted a video clip and article about a few construction companies which have found that using tablets has saved them time and money.

Paul Ozinga, co-owner of Ozinga Bros. Inc., said that he has seen, “enhanced productivity in the field” and that the tablets offer, “new ways to speed up communications, obtain client approvals, complete inspections, arrange logistics and manage other complications.” One example of how the tablets can help streamline work is that through an application, project managers can pinpoint the exact location of delivery trucks. This simple feature can facilitate a manager plan more accurately, and help projects stay on schedule.

Construction technology does not just stop with the iPad. New programs such as BIM are coming out in the market all the time. It is important for owners to learn what tools are most effective for their business in order to stay competitive in the marketplace.

Jennifer M. Horn is Senior Counsel at Cohen Seglias and a member of the Construction Group. She concentrates her practice in the areas of construction litigation and real estate.

“Technology has transformed dozens of ways we interact with the world. How we communicate, learn, work, entertain, and provide for ourselves have all been radically altered by computers, sensors, and software. One area where technology is woefully underused, but sorely needed, is in roadway safety.”

Patrick Sorek, Partner with Cohen Seglias recently authored an article for Highway Builder Magazine, titled “We Need Technology to Boost Our Traffic Management” which discussed the need for improvements in transportation technology. The article discusses new ideas for highway technology such as traffic control sensors and cameras to increase roadway safety.

To read the full article, please visit Highway Builder, and for more information, please contact Patrick Sorek.

Patrick Sorek is a partner in the Commercial Litigation Group of Cohen Seglias Pallas Greenhall & Furman PC. Mr. Sorek focuses his practice in commercial litigation, and has considerable experience in civil rights and employment cases.

Building Information Modeling (BIM) is a technological process that allows building and construction data to be modeled and managed three dimensionally. The technology can be used to represent a building in ways that the more traditional drawings prepared by design professionals and utilized by contractors and subcontractors cannot. As is often the case with technological advancements, BIM is a technology with seemingly limitless potential to enhance efficiency and reduce errors in the construction industry, but it is not without potential problems and future implications that must be addressed as BIM becomes more prevalent.

As an illustration to the double-edged sword that is BIM, the parties involved in what is believed to be the first major lawsuit relating to the use of BIM recently reached a settlement. Due to the confidential nature of the settlement, many of the facts that gave rise to the dispute are unknown. Here is what we know and what we can learn from the lawsuit.

The First Known BIM Lawsuit

The construction of a life-sciences building at a major university went awry when the mechanical, electrical and plumbing (MEP) contractor ran out of room in the ceiling plenum to assemble the MEP system. When the problem arose, the work was approximately 70% complete. The project architect and MEP engineer used BIM to fit the MEP system into the ceiling plenum, but the contractor ran out of room because no one informed the contractor that a very specific installation sequence was necessary for the system to fit.

As a result of this problem, the MEP contractor sued the project owner, the project owner sued the architect, and the architect's insurance carrier joined the consulting engineering firm that designed the MEP system. Without the benefit of more facts, it is nonetheless obvious that the source of the issues that gave rise to this litigation was a breakdown in communication between the owner, the design professionals and the MEP contractor. Communication is critical in the construction industry regardless of the type(s) of design technology in use. The larger issue that the use of BIM raises is its potential impact on the traditional allocation of risk in construction contracts and documents.

The lawsuit that arose from this project brings to light two undeniable facts regarding BIM:

• BIM can prove incredibly useful and efficient but not without close and regular communication between the designer and the installer; and
• Construction contracts must address the allocation of the risks associated with the use of BIM so that the parties involved in design and construction of the project know their roles and responsibilities from the outset.

As we learn more about this particular project and other projects like it, we will provide a more substantive analysis of BIM's effect on your businesses.

With reports still coming in about the devastation in Japan, one thing is clear: had the 9.0 magnitude earthquake struck a populated coastal region of the United States, even greater destruction would have occurred.

In terms of earthquake and tsunami preparation, Japan leads the way when it comes to disaster preparedness. “If any country understands [the] interplay of earthquakes, waves and buildings it is Japan, which has developed stringent building codes and well-rehearsed evacuation plans.” Even with all the precautions taken, Japanese public broadcaster NHK reported that, “63,000 buildings had been damaged, more than 6,000 of them obliterated.”

Trouble in Japan for Nuclear Power Plants

However, even the most advanced seismic retrofitting and planning is not catastrophe proof, as demonstrated by the effects of last week’s earthquake and tsunami. Japan is currently witnessing “all kinds of damage from the quake, including power outages…radiation leaks from nuclear power plants, fresh water shortages and fires.”

One nuclear power plant in particular, Fukushima, could not withstand the aftershocks from the quake. After ongoing aftershocks struck the plant, explosions at multiple Fukushima reactors occurred and technicians battled to stabilize additional reactors which were reportedly at risk of fuel-rod meltdown.

Early this morning “A fire and a fresh aftershock struck the Fukushima nuclear plant...The government confirms that the level of radiation around the reactor has risen, requiring the remaining 50 technicians to briefly evacuate to a safe place.”

What the U.S. Can Learn from Japan’s Earthquake

The explosions at Fukushima have had a chilling effect on the U.S. Nuclear Regulatory Commission (NRC). Numerous power plants across the country, including Exelon Nuclear’s Generating Station and the Peach Bottom nuclear plant, both located in Pennsylvania, will be reviewed for their safety standards. Neil Sheehan, a spokesperson for the NRC stated that:

Advances in seismic science have prompted his agency to undertake a project to review safeguards at some of the nation’s nuclear power plants as they relate to any seismic issues specific to each plant’s location…These plants were all built to withstand seismic activity…but a lot of them were built in the 60s and 70s and our ability to gather seismic data and do computer modeling on that data is much improved since then.

According to Senator Joe Lieberman, chairman of the Homeland Security and Governmental Affairs Committee, “Power plants are required to withstand the highest-probable earthquake in each region where they’re built; the U.S. also has emergency evacuation plans in place near plants.”

New Power Plants Under Consideration

The NRC had plans in the works to review many existing U.S. nuclear power plants before the latest earthquake struck Japan, and a major reason for that was due to the recent surge in new applications for the construction of power plants. “After a 30-year hiatus, several new plants are now under consideration,” and the U.S. has been working to re-start nuclear power plant construction as a way to reduce its dependence on fossil fuel and curb greenhouse gas emissions.

In light of what has happened in Japan, Lieberman believes that we should not begin building any new plants until we gather more information on what went wrong in Japan.

Lessons Learned

The damage caused by natural disasters like the recent earthquake in New Zealand and the earthquake and tsunami in Japan should serve as a lesson to contractors that seismic retrofitting is going to become a standard for future projects, particularly in the case of large infrastructure projects such as bridges, dams pipelines and power plants. It is important to stay abreast of new regulations as they come out, and adjust building plans accordingly. Even in areas where natural disasters are less likely to occur, projects will have to adopt to new standards, as demonstrated here in Pennsylvania, where two nuclear power plants are being reviewed for safety standards.

Building information modeling, commonly referred to as BIM, is a technology that has the potential to revolutionize the process of project design and construction. According to the president of the Mechanical Contractors Association of America, BIM is becoming a “growing factor” in how contractors do business in the U.S. BIM makes it possible to create three-dimensional, geometric computer models of a building that can then be navigated like a video game and updated on an ongoing basis. BIM models produce detailed electronic and hard-copy construction drawings that show a significant amount of detail. There are advantages and disadvantages to using BIM and it is important that contractors recognize the effect this technology may have on their work.

Advantages of BIM

• Visualization- BIM models are relatively easy to understand and show depth and elevation in a clear, visual way. On a non-BIM drawing, a contractor may not immediately understand how an entryway will look once it is completed. However, on a BIM model, the entryway appears on the computer screen in a way that mimics its finished look.
• Collaboration-BIM allows for unprecedented collaboration on design. BIM models give all contractors an opportunity to sit down together and work through issues before construction begins. This is especially useful in the case of “clashes” that can lead to the “stacking of trades” - areas where two different contractors plan to install material in the same space, sometimes at the same time. Instead of addressing clashes in the field, where resolution may require that one contractor remove and reinstall its materials or suffer delay, settling clashes on the BIM model means the resolution occurs before any work is done.
• Flexibility-With BIM, it is easy to make design changes. A change to the BIM model automatically updates all of the individual drawings that are affected by that change. For example, if a foyer is added to first floor on the BIM model, all the drawings showing the first floor will now also show the details necessary to build the foyer. Once the change is made to the BIM model, it is unnecessary to make manual changes. The designer simply needs to print new construction drawings.

Disadvantages of BIM

• Training and Software Costs-The use of BIM requires significant training and as with any software program there are costs associated with the software such as purchasing, licensing and training. A contractor may need to upgrade its computer system to effectively use the BIM software.
• More Work Upfront-BIM requires more effort at the outset of a project. When BIM is used, it is insufficient for a contractor to simply submit plans for its own work and then begin construction. The contractor must first sit down with the designer and other prime contractors and create the collaborative model.

• Disruptive- Although one of the advantages of using a BIM model is that changes can be made quickly, BIM can disrupt the general procurement and construction process when ordering items that require a long lead time. For example, a contractor may need to order material based on the dimensions of the design. Ordering this material may take weeks or months. If the dimensions change, as may occur when multiple contractors are inputting information into a model on a continual basis, the contractor may be left with insufficient time to order the material.

Legal Impact of BIM on Contractors

The use of BIM radically changes the relationship between the contractor and designer, and potentially increases the legal risk for contractors. In traditional projects the contractor typically has no significant involvement in the design process and must rely on the drawings provided by the designer. Accordingly, many jurisdictions permit contractors to sue a designer for professional negligence if there are errors and omissions in the design drawings. Because BIM allows contractors to be actively involved in the design process, it becomes more difficult for a contractor to successfully claim that it relied upon errors and omissions in a drawing.

BIM is still a relatively new technology, and there have not been many court cases addressing issues relating to errors and omissions on BIM projects. In jurisdictions where courts have allowed contractors to sue designers for professional negligence, it seems likely that courts will allow prime contractors to sue each other for errors and omissions on BIM projects. Given this risk, contractors should carefully examine all contracts on BIM projects to ensure that they are tailored to address the relationships and liabilities in a way that accounts for the unique aspects of a BIM project.