AIA Document E402™–2022 serves as an exhibit to be used by the Construction Team members using Building Information Modeling (BIM) on a Project. E402-2022 is intended to be used when Models will be shared solely within the Construction Team, which is defined as “the Contractor, its Subcontractors, and Sub-subcontractors, including fabricators, at any tier.” E402-2022 allows the Construction Team to agree upon terms related to BIM, including Model uses, sharing, and reliance. E402-2022 also includes terms related to insurance for BIM and Digital Data risks, as well as terms for non-BIM Digital Data. E402-2022 requires the Construction Team to complete and adhere to a BIM Execution Plan, such as AIA Document G203-2022.
Changes from the Previous Version.
AIA Document E402-2022 is the indirect successor document to E203–2013 with many changes, as explained below and in the Digital Practice Documents Guide.
Date. The date represents the date the Exhibit becomes effective. It may be the date an original oral agreement was reached, the date of actual execution, or some other date.
Parties. Since E402-2022 is an Exhibit to an Agreement, the Parties are identified, using their full addresses and legal names, in the Agreement. E402-2022 is intended to be negotiated early in the contract negotiation process – typically when the first Agreement, or set of Agreements, is being negotiated. The Exhibit is then attached to that first Agreement or set of Agreements. As additional Construction Team Members are added to the Project via separate Agreements, the previously-negotiated E402-2022 is attached to each new Agreement. Thus, each time the previously-negotiated E402-2022 is attached to an Agreement, the defined terms “Parties” and “Agreement” will change, but the other terms of the Exhibit will not. For example, a Contractor may hire a Subcontractor for one aspect of a project, and then that Subcontractor may hire Sub-subcontractor. In that scenario, the Contractor and Subcontractor may have negotiated the E402-2022 and, when it is attached to their Agreement, the “Parties” are defined as the Contractor and the Subcontractor. Then, when the Subcontractor hires the Sub-subcontractor, the same E402-2022 is attached to their Agreement but, in that Exhibit, the “Parties” are defined as the Subcontractor and the Sub-Subcontractor.
Agreement. The Agreement is the Agreement to which the E402-2022 is attached. As explained above, since the E402-2022 is negotiated once but potentially attached to many separate Agreements, the defined terms “Agreement” and “Parties” will change to mean the specific Agreement (and the Parties to that Agreement) to which the E402-2022 is attached, but the other terms of the E402-2022 will not change.
Project. Describe the Project by including (1) the official name or title of the facility, and (2) the location or address, if known.
Article 1 General Provisions
- 1.2 Section 1.2 sets forth the various defined terms that are used throughout the E402-2022. Since other documents within the Digital Documents family, such as the G203-2022 BIM Execution Plan, incorporate the definitions from the Exhibit, it is important to carefully consider any changes made to definitions.
- 1.2.4 Confidential Digital Data is a subset of Digital Data that has been identified as “confidential.” Identifications may be made in the subject line of an e-mail message attaching a file containing Confidential Digital Data, or may embed the identification in the file itself, or may be made by some other method. Designating Digital Data as “confidential” allows the Parties to protect different types of sensitive business information or practices, as well as intellectual property, from disclosure or use beyond that required in furtherance of the Project.
Article 2 Model Uses, Sharing, and Reliance
- 2.1 Section 2.1 provides that the terms related to sharing, using, and relying upon a Model or Model Portion are set forth in Articles 2 and 3 of E402-2022.
- 2.2 Section 2.2 contains a check box selection whereby the Parties can determine how the various Construction Team members will develop and use Models on the Project. The Parties are instructed to check all of the boxes that apply for their Project, and to describe the selected use.
Article 3 BIM Execution Plan
- 3.1 In Section 3.1, the Parties select the Construction Team member who will be responsible for preparing and updating the BIM Execution Plan. Under this section, the Contractor is the default Construction Team member who will be responsible for preparing and updating the BIM Execution Plan, but the Parties can identify another Construction Team members if they choose. Section 3.1 also gives the Parties the ability to select multiple Construction Team members to update the BIM Execution Plan at different Project milestones.
- 3.2 In Section 3.2, the Parties select the BIM Execution Plan that they will use for the Project. The four selections from which the Parties choose are (1) the AIA G203-2022 BIM Execution Plan, with G205-2022 Abbreviated Model Element Table; (2) the AIA G203-2022 BIM Execution Plan, with G204-2022 Model Element Table; (3) the AIA G203-2022 BIM Execution Plan, with a custom model element table; or (4) other, in accordance with Section 3.2.1. The first three of these selections include the AIA G203-2022 with either version of the AIA’s Model Element Table (G205-2022 or G204-2022) or a custom model element table, while the fourth option gives Parties the ability to use their own BIM Execution Plan and their own model element table. E402-2022 presumes that a BIM Execution Plan will be used. Therefore, if Parties select the fourth option – to use their own BIM Execution Plan – then E402-2022 provides that the BIM Execution Plan shall contain the information listed in Section 3.2.1.
- 3.2.1 Section 3.2.1 contains the list of information that shall be included in the Parties’ BIM Execution Plan. If the Parties select the AIA’s G203-2022 BIM Execution Plan, all of this information is already contained therein. However, if the Parties elect to use their own BIM Execution Plan, then, at a minimum, it shall contain the information listed in Section 3.2.1. Subsection 10 of Section 3.2.1 provides a space where the Parties can list other types of information or items that shall be included in their BIM Execution Plan.
- 3.6 It is typical for BIM Execution Plans to be prepared after Agreements, and exhibits thereto, are negotiated and executed. Therefore, Article 3 of E402-2022 provides that Parties are required to review the BIM Execution Plan, and any updates thereto. If, after reviewing the BIM Execution Plan, a Party has objections thereto or believes that the protocols established therein will result in a change in the Party’s scope of work or services warranting an adjustment in compensation, contract sum, schedule, or contract time, then they must provide notice. Section 3.6 provides that notice shall be provided within thirty days of receipt of the BIM Execution Plan, unless the Parties choose another notice period.
Article 5 Non-BIM Digital Data
- 5.1 Digital Data is defined in E402-2022 as “information created or stored for the Project in digital form.” Therefore, E402-2022 anticipates that Parties may utilize Digital Data for their Project that is both part of a Model (such as Model Elements), and not part of a Model (such as emails and text messages). Section 5.1 deals specifically with Digital Data that is not part of a Model, and provides that Parties will use their own protocols for creation, storage, management, archiving, and sharing of that Digital Data. If Parties wish to follow joint protocols for the management of Non-BIM Digital Data, then they can describe those protocols in Section 5.1.
Article 6 Ownership, Sharing, and Security of Digital Data
- 6.6 Different projects may require different levels of data security. Therefore, Section 6.6 provides a space for the Parties to identify any data security measures that are appropriate for the Project.
Article 7 Insurance for BIM and Digital Data Risks
- 7.1 In addition to the data security measures identified in Section 6.6, and in addition to the insurance requirements set forth in the Agreement, the Parties may wish to require insurance that is specific to the BIM aspects of their Project. Accordingly, Section 7.1 allows the Parties to list any insurance coverage to be provided by all, or certain, Construction Team members developing or using Models or Digital Data.
Article 8 Other Terms and Conditions
- 8.1 Section 8.1 provides a section for the Parties to indicate any special terms and conditions that modify the Exhibit.
- 8.2 Section 8.2 provides a listing of documents that comprise the Exhibit. Subsection 8.2.2 provides a section to list any additional documents that the Parties wish to comprise the Exhibit.
Modifications. Particularly with respect to professional or contractor licensing laws, building codes, taxes, monetary and interest charges, arbitration, indemnification, format and font size, AIA Contract Documents may require modification to comply with state or local laws. Users are encouraged to consult an attorney before completing or modifying a document.
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