BIM and Modular Building
Legal and Contractual Considerations
Stephen A. Hess, Esq.
Woolwich, Ferryview Health Center
http://commons.wikimedia.org/wiki/File:Woolwich,_Ferryview_Health_Centre__geograph.org.uk_-_331725.jpg
Overview

BIM and the Spearin Doctrine
 Shop Drawings and BIM
 BIM, Warranties, and Modular Building

BIM, Modular Construction and the UCC

Pass-Through Clauses and BIM
Stephen A. Hess
BIM and the Spearin Doctrine
• Spearin: Owner warrants the suitability of plans and
specifications for construction
• Applies only to design specifications and not to
performance specifications
• BIM may involve Contractor enough in design to erode
Spearin
• Contracts can be adjusted so as to allocate
responsibility in face of Spearin
• Modular construction and Spearin: are exact
components specified?
Stephen A. Hess
BIM and the Spearin Doctrine
Sec. ‘23. Steel Poles: (a) Steel poles shall be located as indicated on the plans. They shall be
100 feet in height and shall be equipped with platform assemblies, cross-arms, etc., all as
indicated on the plans. The poles shall be design #544-Y-53 for mounting 32 floodlights per
pole as manufactured by Union Metal Manufacturing Company, Canton, Ohio, or approved
equal. The poles shall be guaranteed to withstand a wind pressure of 100 mph when the pole is
completely equipped with all lights, wires, etc., in its intended location. The steel poles shall be
mounted on the concrete foundations as indicated. ‘ (Italics supplied.)
Sec. ‘31. Testing and Guarantee: * * *
‘(b) * * * [The contractor] shall guarantee the material, equipment and workmanship furnished
by him shall be entirely free from defects, and that he will repair or replace at his own expense
as may be directed by the Architect, any material, equipment or workmanship in which defects
may develop within one year from date of final payment for the work.‘
Greater Richmond Civic Recreation, Inc. v. A. H. Ewing's Sons, Inc., 200 Va. 593, 594-595, 106
S.E.2d 595, 596 (Va.1959)
Stephen A. Hess
Shop Drawings and BIM
• Contractor is required to build in accordance with
contract documents
• Plans and specifications are contract documents
• Contractual submittal requirements call for shop
drawing approval by A/E
• Shop drawings are generally not contract documents
• Approval of shop drawings does not absolve contractor
of responsibility to build according to plans
Stephen A. Hess
Shop Drawings and BIM
§ 3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not
Contract Documents [unless specifically incorporated by subsequent action]. Their
purpose is to demonstrate the way by which the Contractor proposes to conform to
the information given and the design concept expressed in the Contract Documents
for those portions of the Work for which the Contract Documents require submittals.
Review by the Architect is subject to the limitations of Section 4.2.7. Informational
submittals upon which the Architect is not expected to take responsive action may be
so identified in the Contract Documents. Submittals that are not required by the
Contract Documents may be returned by the Architect without action.
AIA A201-2007 GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
Stephen A. Hess
BIM, Warranties and Modular Building
• General contractor provides its own warranty
• With respect to equipment, GC usually passes
manufacturer warranty through to Owner
• GC does not guarantee warrant – that is, warranty
replaces (or supplements) GC’s obligation
• Modularization presents elements at crossroads of
warranties
• Requires attention to contract allocation to ensure that
GC does not bite off more warranty than intended
Stephen A. Hess
BIM, Warranties and Modular Building
§ 3.5 The Contractor warrants to the Owner and Architect that materials and equipment
furnished under the Contract will be [1] of good quality and new unless the Contract
Documents require or permit otherwise. The Contractor further warrants that [2] the
Work will conform to the requirements of the Contract Documents and [3] will be free
from defects, except for those inherent in the quality of the Work the Contract Documents
require or permit. Work, materials, or equipment not conforming to these requirements
may be considered defective. [4] The Contractor’s warranty excludes remedy for damage
or defect caused by abuse, alterations to the Work not executed by the Contractor,
improper or insufficient maintenance, improper operation, or normal wear and tear and
normal usage. If required by the Architect, the Contractor shall furnish satisfactory
evidence as to the kind and quality of materials and equipment.
AIA A201-2007 GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
Stephen A. Hess
BIM, Modular Construction, and the UCC
Uniform Commercial Code is statute adopted by states
that governs – among other things – sales of goods
UCC applies to goods that are moveable at time of
identification to contract
UCC does not apply where goods are incidental to
construction
Open question is extent to which UCC may apply to
modular construction components
Ramifications: what laws govern the relationship
between the parties – contract law or UCC?
How are contract rights and UCC rights different?
Stephen A. Hess
BIM, Modular Construction, and the UCC
http://commons.wikimedia.org/wiki/File:Lego_Modular__Sets_10218,_10197,_and_10211_(8028850740).jpg
Pass-Through Clauses and BIM
• Pass-through clauses help ensure that contractor’s
scope of work to Owner is completely and consistently
allocated to subcontractors
• Scope of a pass-through clause may be limited to
precise specifications
• Application to BIM is untested, and deserves attention
• Especially true where modular components may not
generally encompass Division 1 or other general
conditions
Stephen A. Hess