Wednesday, April 27, 2011

Why Legal Agreements Matter

Welcome to the Collaborative Revolution!

This post was adapted from a comment I made in iPda's new bs BIM Group discussion.  iPda is a new venture that provides cutting edge BIM Consulting Services and the bs BIM Group is a LinkedIn Group that is focused on BIM Servers and use of the same to facilitate IPD.  The comment below was in response to another poster who mentioned the use of Design-Construct agreements used in Australia and New Zeland.
The problem lies with traditional transactional legal agreements. Those instruments force key stakeholders who ought to be coordinating and collaborating closely into silos where they work - far too often - in isolation. There is a fundamental difference between a traditional transactional agreement and an integrated or collaborative agreement. Transactional agreements CREATE legal relationships out of whole clothe among strangers who rely on the Court System to adjust those legal relationships when disputes arise. By contrast, integrated or collaborative agreements ARISE OUT OF trusted business relationships among parties who leverage advanced alternative dispute resolution mechanisms to adjust their legal relationships when disputes arise.

It is very difficult to achieve Integrated Project Delivery within a traditional legal framework because those agreements tend to pit the interests of the parties one against another and key stakeholders retreat to their silos to perform work that ought to be completed in a collaborative and cooperative environment.

Think of integrated or collaborative agreements as the keystone that supports an arch upon which IPD can be built. The image below will give you a graphic visual for the concept.  The blocks on the left side of the arch are carved using BIM / VDC tools and software while the blocks on the right side are carved using lean tools and business processes like the Last Planner System, lean supply chains and logistics, etc. When trusted business partners enter into an integrated or collaborative agreement they spend a lot of time building that arch together. Traditional transactional agreements CREATE legal relationships and are not tailored to serve the keystone role. Integrated and collaborative agreements are. 

The Design&Construct instruments from AU / NX andthe UK served as the catalyst for the Design-Build movement in the US and, ultimately, inspired Will Lichtig - Sutter Health's lawyer - to draft the first Integrated Form of Agreement for Integrated / Lean Project Delivery. The Sutter Health IFOA then served as the model for the ConsensusDOCS 300 Series, the AIA's Integrated Project Delivery Guide and the AIA's so-called transistional IPD Documents. This new generation of legal instruments are critically important to the process of IPD but are, unfortunately, largely untested and not quite ready for prime time.

That said, owners - especially large institutional owners - are beginning to demand BIM to FM, which will require integrated agreements in the private sector and integrated procurement laws and regulations in the public sector. Sophisticated owners want their planners, designers and constructors to hand off digital assets that function as Integrated / As-Built BIM Models. Such digital assets can then be used to increase the efficiency with which a facility is operated and maintained throughout its life cycle, something far more valuable than saving a few dollars during design and construction. I highlighted this issue in a recent post here in which I analyzed an ENR article titled, "Aligning Data for the Life Cycle."

Lack of interoperability among BIM software programs is hindering the BIM to FM process, but the design professionals in this forum are making great strides towards overcoming the technical hurdles, while the new generation of legal instruments will provide needed structure and support. BIM Servers operating on a common neutral IT backbone ala the internet will - I think - be the best long term solution to the technical challenges. A BIM xml "language" that leverages IFCs and COBIE standards will enable designers and facilities managers to achieve BIM to FM. Again, the deisgners commenting in this forum are well on their way. 

James L. Salmon, Esq.
Collaborative Construction
300 Pike Street
Cincinnati, Ohio 45202
Office 513-721-5672
Fax 513-562-4388
Cell 512-630-4446
Collaborative Construction Website
Sustainable Land Development International

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