The AIA’s 2013 Digital Practice Documents play a prominent – yet little understood – role in the AIA’s newest Contract Documents. While previously optional, Digital Practice Document use is now expressly required by the unedited standard form language of the Owner-Architect Agreement (B101-2017), Owner-Contractor Agreement (A101-2017), General Conditions of the Contract for Construction (A201-2017), Contractor-Subcontractor Agreement (A401-2017), Architect-Subconsultant Agreement (C401-2017), and other AIA contract forms. This post identifies the AIA’s Digital Practice Documents – the E203-2013, G201-2013, and G202-2013 – and describes practical considerations for their use.
The Digital Practice Documents
Most people in the design and construction industry are unfamiliar with the AIA’s three primary Digital Practice Documents, and they fail to appreciate that two apply even if Building Information Modeling (BIM) is not used on the project:
E203–2013, BIM and Digital Data Exhibit
This contract exhibit must be incorporated into the contracts of nearly all project participants, including the Owner-Architect Agreement and Owner-Contractor Agreement.
G201–2013, Project Digital Data Protocol Form
This Digital Data protocol form takes legal effect through the E203 contract exhibit and sets the project-specific rules for Digital Data use, even on non-BIM projects.
G202–2013, Project BIM Protocol Form
This BIM-specific protocol is used with the E203 contract exhibit and the G201 protocol form on BIM projects. The G202 form is complex and should be used only after it is well understood.
Of course, Owners, and their Architects and Contractors, can choose to delete the requirement to use the Digital Practice Documents from their contracts. However, few know that they need to decide whether to delete or keep this requirement. Thus, the AIA’s presumption that the Digital Practice Documents will be used has sweeping legal and business considerations.
New Important Role of These Old Documents
The ways in which the design and construction industry transmits, uses, and relies on Digital Data have evolved rapidly in the last decades. All projects use Digital Data in some form or another. As defined by the AIA’s standard forms, “Digital Data” encompasses anything stored in digital form – from the simplest emails to complex BIM Model Elements.
Digital Data sharing is not new in the design and construction industry. However, contracts and legal doctrines often lag behind new technologies and trends in project delivery. The natural consequence of this phenomena is that contracts are often backward-looking and contain “gaps” created by modern industry practices. Like many other risks, Digital Data-related risks can be most predictably managed by contract. Yet, most design and construction contracts give light treatment – or no attention – to this increasingly important subject.
E203-2013, BIM and Digital Data Exhibit
The E203 contract exhibit is the flagship of the AIA’s Digital Practice Document suite. The E203 form fosters a discussion between – and sets forth the basic expectations of – the Owner, Architect, and Contractor about Digital Data use. Under the E203 exhibit, the Owner, Architect and Contractor must, “as soon as practical following the execution” of their contracts, create Digital Data protocols to set the rules of the road for project Digital Data use. The E203 contract exhibit also provides some contractual protection for parties that use Digital Data in accordance with the agreed-upon protocols. Conversely, the standard AIA contract forms provide that parties who use Digital Data in ways inconsistent with the G201 and G202 protocols do so at their sole legal and contractual risk.
G201-2013, Project Digital Data Protocol Form
The G201 is the AIA’s basic Digital Data protocol form. The G201 form is typically completed in the early phases of the project – after the Owner, Architect, and Contractor determine how they plan to use Digital Data going forward. The standard G201 form should be modified, as necessary, to meet the Digital Data needs of the project. The G201 protocol form identifies:
- Each Project Participant whose contract incorporates the E203 contract exhibit. These “Parties” agree, by attaching and incorporating the E203 exhibit into their separate contracts, to abide by the later agreed-upon G201 protocols.
- Protocols for managing Digital Data, including authorized formats, software versions, and transmission methods; document management systems; rules for user access and security; guidelines for training, startup and support; storage requirements and procedures; and protocols for archiving and preserving Digital Data.
- A range of possible “Authorized Uses” for Digital Data – from “modify” as required, to “store and view” only, to “reproduce and distribute” the Digital Data.
Unless the Owner deletes the AIA’s assumption that the Digital Practice Documents will be used in the Owner’s agreements with the Architect and Contractor, any project that uses Digital Data – from text messages, to emails, to more advanced technology – must implement a G201 protocol.
G202-2013, Project BIM Protocol Form
If BIM will be utilized on the project, the Parties must also adopt a G202 protocol form. The G202 form is completed at a logical point near the project outset. This is typically after the Owner, Architect, and Contractor determine their plan for BIM use – and after they hire key consultants and contractors. The G202 is a fairly complex document, and filling in the blanks of the standard G202 form can help these parties develop their plan for BIM use.
The heart of G202 protocol form is the Model Element Table. This substantial matrix identifies who will author various BIM Model Elements, and the extent to which they can be relied on at various times, by various parties, throughout the project. The G202 protocol form specifies minimum content requirements for Model Elements at five Levels of Development (LOD):
- LOD 100 (conceptual)
- LOD 200 (approximate quantities, size, shape, location)
- LOD 300 (specific quantities, size, shape, location)
- LOD 400 (fabrication, shop drawing detail)
- LOD 500 (field verified, as-built)
The G202 form also identifies “Authorized Uses” for BIM Model Elements at each LOD. Authorized Uses are paired to Model Element content requirements at specific points in time.
All of this may seem abstract and confusing, but it has tremendous practical application. A cautious party – say, a cost estimator – can use G202 to determine, for example, that in LOD 100 it can use Model Elements for conceptual estimating but cannot use Model Elements for detailed take-offs. This example also illustrates how easily a party can use Digital Data in a manner inconsistent with the G202 protocol, if it does not take the time to understand the specific “rules of the road” that the protocol sets out for project Digital Data use.
Risk Allocation Scheme
Parties should agree upon, and document, the Digital Data protocols without undue delay. Under the language of the AIA’s standard contract forms, if a party receives Digital Data before G201 and G202 protocols are agreed to and documented, the receiving party may not use, transmit, or rely on the Digital Data. Any such premature use is at the receiving party’s sole risk – without liability to other parties. Similarly, after G201 and G202 protocols are agreed to and documented, any use or reliance on Digital Data in a manner inconsistent with the “Authorized Uses” is at the sole risk of the user..
Using the Digital Practice Documents
The E203 contract exhibit and the G201 protocol form are always used together.. On BIM projects, the G202 should be used as well. The E203 exhibit is prepared at the project outset; it is incorporated into the relevant project contracts as soon as possible, and it is seldom revised. However, G201 and G202 protocols can be updated, with agreement of parties, as project circumstances change. For example, while a mechanical engineer might be the “Model Element Author” for certain BIM Model Elements in early LOD stages, the mechanical contractor might transition into that role during the more advanced LOD stages, like fabrication or construction. This is one of dozens or more possible examples. Thus, G201 and G202 protocols should be revisited and revised throughout the project.
Contract Considerations
Both attorneys and AIA Contract Document users should understand that the E203 is not a standalone agreement; it is a contract exhibit. The E203 takes legal and contractual effect, and permeates throughout the entire project, when the E203 is incorporated to the contracts of all those parties who may use Digital Data. Thus, the E203 is incorporated into the Owner-Architect and Owner-Contractor Agreements, and the contracts of most all lower tier project participants. Similarly, the G201 and G202 protocol forms are not standalone agreements or contract exhibits; they take legal and contractual effect through the E203 contract exhibit. Not understanding this can subject parties to liability. For example, failing to incorporate the E203 exhibit into your relevant downstream contracts can make you responsible for your subconsultants’ or subcontractors’ misuse of Digital Data.
Innovative Approach
This might shock attorneys: under the E203 contract exhibit, every Project Participant who uses Digital Data is an intended third-party beneficiary of every party’s obligation to incorporate E203 into their other relevant contracts, and “any rights and defenses associated with enforcement of that obligation.” This standard AIA contract language tries to ensure each party complies with its obligation to incorporate E203 into its relevant downstream project contracts and, ultimately, to comply with the G201 and G202 protocols. For the non-lawyer readers, a “third party beneficiary” is a party who can sue for breach of contract despite the fact that it is not one of the two direct parties to that contract. Usually, only the two parties to a contract can assert breach of contract claims against each other. Time will tell how judges and arbitrators enforce E203’s third party beneficiary provisions.
The Take-Away
The AIA’s Digital Practice Documents take important steps in trying to match contract terms with modern trends in Digital Data use. This is a good thing. The Digital Practice Documents can, however, be complex to use and administer. They require significant early project “buy in” from the Owner, Architect, and Contractor. Parties should consider using the Digital Practice Documents – but they should not use them lightly, and not without understanding their requirements.
Digital Data sharing is not new in the design and construction industry. However, contracts and legal doctrines often lag behind new technologies and trends in project delivery.
This was prepared for the general information of Illinois-based friends of Baker Law Group LLC. It is not legal advice for you, or legal advice regarding any specific matter. Jeremy S. Baker is licensed to practice law only in Illinois. Under rules applicable to the professional conduct of attorneys in various jurisdictions, it may be considered attorney advertising material. Prior results do not guarantee a similar outcome.
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