Seen any changes the past thirty years in the delivery of professional design services? Sure, you have—particularly in the area of construction documents. Raised stools and drafting tables, pounce, and lead-darkened calluses on the middle finger of the draftsmen have, for the most part, yielded to CAD. Although CAD’s promise of error-free drawing may have proven elusive, many of its other promises have been fulfilled. Some even appear understated in hindsight—in part because CAD and the Internet seem to have been made for each other. Their combined effect reduces trying to list all the ways CAD has changed project delivery to a futile exercise.
Like CAD in the ‘80’s, BIM seems to hold similar promise today—a fact not lost on contractors, A/E’s, and project owners alike. Digital models are more-and-more often offered or requested as “deliverables.” And multiple models for the same project are not uncommon—as building team participants explore their usefulness at various stages of design and construction. Some models are used much like enhanced CAD construction documents, provided and controlled largely by the A/E. But many incorporate data contributed by sources other than licensed design professionals, including suppliers, fabricators, contractors, and subs. Not surprisingly, many contractors and construction managers view BIM as a means for carving out an increased share of the project delivery pie—and are taking full advantage of it as both a marketing and performance tool. Some of them have even become the primary creators and custodians of digital models. Of course, that is not altogether unnatural. After all, it’s hard to ignore a tool that can show what will be built—and also to be useful in actually building it.
Although BIM’s ultimate effects are as yet unknown, two “traditional” principles will continue to apply as they unfold: First, regardless of the A/E’s role in the BIM process on a given project, society continues to place primary importance on the A/E’s unique duties as protector of public safety when it comes to building design and construction. And second, authors (including A/E’s and others) typically continue to control copyrights in their technical drawings and designs—unless they divest themselves of those rights in writing. The “promise of BIM” aside, any member of the building team who ignores these two “traditional” principles does so at some risk.
In the United States, it is state law that predominantly governs the practices of architecture and engineering. Those laws are almost invariably rooted in the states’ so-called “police powers” (i.e., those safeguarding life, health, and property). As part of their implementation, states typically issue regulations governing the use of professional titles and application of professional seals and signatures to A/E reports and documents. Those regulations, almost without exception, require that seals and signatures of design professionals of record be placed on “for construction” documents.
Thus, the act of sealing and signing construction documents is a solemn one. Generally, seals are to be applied only when the plans were prepared by the registrant or under the registrant’s direct supervision and control. In the last two decades, some states have modified their regulations to allow application of digital seals and signatures. But sealing is of such importance that those regulations can also call for digital authentication or seal-removal mechanisms aimed at disabling or obliterating digital seals and signatures before they are transmitted outside the control and supervision of the sealing registrant. These life-safety-related obligations cannot be avoided by contract.
That said, it is conceivable that some persons may wrongly conclude from the choices given in certain form contracts (as to who may have custody and control of a digital model) that the decision is primarily one of contract. They might also assume that control of a model can be routinely assigned by contract to someone other than the A/E of record. Such an assumption would likely be a mistake— in part because the duty of the A/E of record to care for the health, safety, and welfare of occupants of structures built using BIM cannot be diluted, discarded, or delegated to nonprofessionals merely by saying so in a contract. Parties to a design or construction contract simply cannot use that contract to nullify the A/E’s continuing, public-protective role. In the case of a “for construction” digital model, conceivably, an A/E’s transfer of control or supervisory custody of the model to a person outside the A/E’s organization (i.e., direct control) could compromise the A/E’s ability to maintain the model’s integrity or to exercise unrestricted professional judgment over its contents. Such a transfer could well be deemed improper— as parties may not contract to do a thing not permitted by law.
But that is not to say that a “for construction” digital model can never be used by other members of the building team independent of the A/E of record. For example, it is predictable that a “for construction” model might be subsequently reproduced and modified by a cabinet supplier to prepare shop drawings (or even to fabricate the cabinets). In such a case, there is nothing whatsoever improper about delegating model custody or control to a non-registrant— provided that subsequent use takes place only after the registrant’s seal and signature have been removed, disabled, obliterated, or disclaimed (or other steps have been taken as required by law).
About the Author:
David Roberts, of Roberts Construction Law, LLC in Atlanta, concentrates his practice on construction law and architectural copyrights. A registered architect since 1977, David was a faculty member at University of Tennessee School of Architecture. He practiced architecture for more than 17 years before beginning his law practice. He is a frequent speaker and author on the topics of standard form design and construction contracts, copyright in construction, and the legal implications of CAD and BIM (Building Information Modeling) on professional design practices. He is a past-chair of the Atlanta Bar Association Construction Law Section.