Legal Issues Surrounding the Use of Digital Intellectual Property on Design and Construction Projects (2013)

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35 ing the operation of the municipal docks and terminals of the city and concerning, inter alia, the routing of property were not subject to disclosure under the law providing for inspection of public records because the disclosure of such information would violate the Inter- state Commerce Commission’s rules protecting trade secrets. On the other hand, in Dir., Dep’t of Information Technology of the Town of Greenwich v. Freedom of In- formation Comm’n,501 the Supreme Court of Connecti- cut rejected the claim of the DIT that the disclosure of GIS data would reveal a trade secret for which the Connecticut statute provided an exemption: The requested GIS data in the present case, however, is readily available to the public, and, accordingly, it does not fall within the plain language of § 1-210(b)(5)(A) as a trade secret. As the trial court noted, the GIS database is an electronic compilation of the records of many of the town’s departments. Members of the public seeking the GIS data could obtain separate portions of the data from various town departments, where that data is available for disclosure. The requested GIS database simply is a convenient compilation of information that is already available to the public. The records therefore fail to meet the threshold test for trade secrets.502 The Maryland Transit Administration’s special condi- tions in regard to the agency’s obligations under the Public Information Act provide that a contractor may “clearly identify each portion of the technical data it considers a ‘trade secret’ to which the public shall be denied inspection.”503 Under the special conditions, cer- tain categories of technical data are not to be considered trade secrets.504 In sum, the cases hold that electronic data are not necessarily protected from disclosure when requested pursuant to a FOIA or FOIL. In two cases the courts held that although the data had to be released, the gov- ernment could restrict redistribution by requiring a requester to sign an end-user agreement. Unless there is a specific exemption, data compiled by the govern- ment is not protected as a trade secret from disclosure; however, information in the possession of the govern- signees, would receive and deliver goods and collect and remit the agreed prices and keep records thereof. Id. at 723–24. 501 274 Conn. 179, 874 A.2d 785 (2005). 502 Id., 274 Conn. at 195, 874 A.2d at 795 (emphasis sup- plied). 503 MTA, SGP -7.04 Rights in Technical Data, ¶ C. Para- graph C also provides that a contractor acknowledges that its “classifications are advisory only.” Id. 504 See id., ¶ D, stating that the following categories are not exempt as trade secrets: 1. Technical data prepared or required to be delivered under this contract and any subcontracts hereunder for the purpose of identifying sources, part numbers, size, configurations, mating, attachment characteristics, functions characteristics and per- formance requirements. 2. Manual or instructional materials prepared or required to be delivered under this contract and any subcontracts here- under, for installation, operation, maintenance, repair, replace- ment, overhaul and training purposes. ment that if released would reveal a third party’s trade secrets may be protected from disclosure. XII. DISCUSSION OF THE TRANSPORTATION DEPARTMENTS’ OTHER RESPONSES TO SURVEY QUESTIONS A. State Statutes or Regulations Applicable to BIM The states did not identify any statutes or regula- tions that authorize or require a transportation de- partment to make use of BIM.505 Caltrans has a direc- tive mandating that certain files must be provided to bidders that will help in developing models.506 Likewise, in Delaware notice is given to a contractor regarding the types of electronic files that will be shared with the contractor who is ultimately awarded a contract.507 There is also a Design Guidance Memorandum for de- termining the projects on which electronic data will be provided.508 FDOT noted that Chapters 334 and 337 of the Florida Statutes permit innovative contracting.509 The departments also did not identify any statutes or regulations in their states applicable to the retention of ownership or control of models developed with BIM.510 PennDOT stated that ownership and control is set by the terms and conditions of the contract.511 B. Identification of BIM Software Used for Transportation Department Construction Projects As for specific BIM software that has been used to de- sign and construct projects, in California, the depart- ment’s engineers use CAiCE to develop internal models; however, Caltrans is in the process of replacing CAiCE with Autocad Civil 3D.512 Caltrans’ response also stated that the creation of a 3D model is not currently a re- quirement of or a deliverable in its project development process, but that after Civil 3D is fully implemented it will be a requirement that 3D models are developed.513 With the implementation of Civil 3D in 2012, the de- partment plans to integrate models into the project de- livery process. However, until all interoperability issues are addressed, the implementation will be internal only.514 The Delaware DOT uses the following Bentley Sys- 505 See, e.g., Caltrans Response, PennDOT Response, and MDOT Response. 506 Caltrans Response. 507 See http://www.deldot.gov/information/business/drc/pd_ files/model_plans/ei-mp-09-004_model_plans_notes.pdf. 508 Id. 509 FDOT Response. 510 See, e.g., FDOT Response; MDOT Response; PennDOT. 511 PennDOT Response. 512 Caltrans Response. 513 Id. 514 Id.

36 tems software products to aid in the creation of road- way models: MicroStation V8i (Version 08.11.07.443), CADD software, and InRoads V8i (Version 08.11.07.536) design software.515 In Florida, the trans- portation department utilizes Bentley’s MicroStation GEOPAK that is capable of BIM modeling. FDOT states that it is in the process of implementing Auto- desk AutoCAD Civil 3D on a few pilot projects whose designs implement “full corridor modeling.”516 The Michigan DOT is using Bentley MicroStation and GEOPAK V8i for the creation of models.517 Michi- gan stated that it has just begun using the new Road- way Designer software within GEOPAK and that the new software provides the department with the capabil- ity to create models.518 Minnesota also identified Bent- ley Civil GEOPAK version V8i SS1 or higher.519 Like- wise, in Missouri, roadway design models are created in GEOPAK SS2 R2 from Bentley Systems.520 PennDOT identified Bentley MicroStation and Inroads versions 8.5 and 8.1 and the use of LandXML format for the transfer of data.521 Finally, the Wisconsin DOT uses AutoCAD Civil 3D to design its projects and reports also that when the AMG surface model delivery re- quirement takes effect projects will be designed in AutoCAD Civil 3D.522 515 DelDOT Response. For example, MicroStation V8i is de- scribed by Bentley as the world’s leading information modeling environment explic- itly for the architecture, engineering, construction, and opera- tion of all infrastructure types including utility systems, roads and rail, bridges, buildings, communications networks, water and wastewater networks, process plants, mining, and more. MicroStation can be used either as a software application or as a technology platform. Bentley, available at http://www.bentley.com/en-US/ Products/MicroStation/. InRoads V8i is described as a system that “provides complete drafting capabilities, powerful map- ping tools, and design automation for civil transportation pro- fessionals. InRoads Suite features constraint-driven, 3D para- metric modeling with an innovative approach to designing civil components in a total-project context.” Bentley, available at: http://www.bentley.com/en-US/Products/InRoads+Suite/. 516 FDOT Response. The manufacturer states: AutoCAD® Civil 3D® software is a Building Information Modeling (BIM) solution for civil engineering design and docu- mentation. Civil 3D is built for civil engineers, drafters, design- ers, and technicians working on transportation, land develop- ment, and water projects. Stay coordinated and explore design options, analyze project performance, and deliver more consis- tent, higher-quality documentation—all within a familiar Auto- CAD® software environment. See AutoCAD Civil 3D, available at http://usa.autodesk.com/ civil-3d/. 517 MDOT Response. 518 Id. 519 MnDOT Response. 520 MoDOT Response. TxDOT identified Autodesk, Navis- Works, compiler of 3D models from AutoCAD (Microstation), and Primavera schedule P3, P6. 521 PennDOT Response. 522 WisDOT Response. C. Other Issues or Problems Experienced by the Departments Using BIM As for any other issues or problems that the depart- ments have experienced in connection with the use of BIM and models, Caltrans stated that software com- patibility between different entities has been an issue when exchanging electronic files.523 On the other hand, Delaware has not experienced any major issues with the CADD or design software when developing roadway models.524 Florida reports some problems with the necessary learning curve and training, “the expense of having more sophisticated software and hardware…, the ad- ditional effort needed to gain proficiency using that software, the acceptance by the designer, and how…the customer (Contractor) take[s] advantage of the technology and the resulting data….”525 MDOT stated that it is slowly beginning to provide models to contractors: We are in our infancy but understand the value of provid- ing electronic information. The best examples of BIM are a result of Design Build and other innovative contracting methods. It takes time to change processes and proce- dures. For instance we have just rolled out the software which is capable of creating models. The designs which incorporate the software may take several years before they are ready for letting to construction.526 In Michigan, pilot projects have revealed the need to perform independent quality assurance of the models prior to publishing them to contractors.527 Furthermore, the transportation department is setting up processes to have a surveyor perform a review of the model and project control. We also need to further define the models based on the type of project. In some cases a 50% complete model may be acceptable for con- struction which would require less designer effort. [For] other types of jobs intersections, driveways, ramps, etc. may need to be precisely modeled to build the job which would require a 100% complete model with increased de- sign time. The other issue that will need resolving is when the contractor discovers a bust in the model. If this happens is it the [department’s] responsibility to correct the model in a reasonable timeframe. In our process the model is provided as information only with letting plans being the controlling document. Theoretically the same bust should be inherent in the planset so [that] the Agency would correct the model. If the bust was not in- herent in the planset it would be left up to the contractor to correct the model.528 523 Caltrans Response. 524 DelDOT Response. 525 FDOT Response. FDOT is not in “the vanguard of 3D de- sign and the delivery of BIM models but has an extensive ex- perience with Electronic Delivery of CADD data, 2D Electronic Plans and Specifications, and Electronic Signing and Sealing.” The department intends to pursue BIM technology for more efficient, less costly projects. 526 MDOT Response. 527 Id. 528 Id.