How is E203–2013, Building Information Modeling and Digital Data Exhibit, different from C106™–2013, Digital Data Licensing Agreement?
AIA Document E203–2013 is not an agreement and accordingly does not stand alone. It must be included as an exhibit to an existing agreement for design services or construction.
AIA Document E203–2013 establishes the parties’ expectations regarding the development and use of digital data (including building information modeling). Having set the baseline regarding digital data and building information modeling (BIM) expectations, E203–2013 then requires the project participants, “[a]s soon as practical” after execution of the agreement, to meet and decide upon the necessary and relevant protocols for the development and use of digital data and models.
The project participants will collectively undertake to negotiate detailed protocols governing the actual use of digital data and BIM. Once agreed to, the detailed protocols are memorialized in AIA Documents G201™–2013, Project Digital Data Protocol Form and G202™–2013, Project Building Information Modeling Protocol Form.
How do I incorporate E203–2013 into an agreement?
If the agreement is not yet executed, you may incorporate it by reference into the agreement by inserting it into the list of documents that comprise the agreement. If the agreement has already been executed, you can add the exhibit by modifying the agreement in writing, such as by using AIA Document G701™, Change Order, G802™, Amendment to the Professional Services Agreement, or G803™, Amendment to the Consultant Services Agreement.
Does E203–2013 grant a license to use digital data?
No, AIA Document E203–2013 does not create a license to use digital data and assumes that licensing and/or ownership of the underlying information has been addressed in the agreement to which E203–2013 is attached. Instead, the exhibit may be used to modify the license or other usage rights established in the agreement into which E203 is incorporated, such as AIA Document B101™, Standard Form of Agreement Between Owner and Architect; A201®, General Conditions of the Contract for Construction; C401™, Standard Form of Agreement Between Architect and Consultant; and other similar AIA agreements for design services or construction. Parties not covered under such agreements should consider executing AIA Document C106–2013, Digital Data Licensing Agreement.
Do the protocols established as a result of E203-2013 apply to all parties, such as downstream subcontractors and sub-subcontractors?
Yes. AIA Document E203–2013 requires the parties to incorporate the exhibit by reference into any other agreement for services or construction for the project. Therefore, the contractor is obligated to incorporate the exhibit into the subcontracts, and the subcontractor is obligated to incorporate it into the sub-subcontracts.
Similarly, the Architect is required to incorporate the exhibit into its agreements with the consultants on the project. Accordingly, all the downstream subcontractors and consultants have incorporated E203–2013 into their agreement and, by its terms, agreed to follow the digital data and building information modeling protocols established and set forth in AIA Documents G201–2013, Project Digital Data Protocol Form and G202–2013, Project Building Information Modeling Protocol Form.
What if a provision in E203–2013 conflicts with a provision in the agreement into which it is incorporated?
In the event of a conflict, normal contract interpretation rules will apply, with the exception of conflicts with Article 2 of AIA Document E203–2013, which will take priority over provisions in the agreement.