BIM is increasingly being adopted by the industry, but who bears responsibility for recommending whether or not to use it in the first place?

James Bessey

BIM has been attracting a lot of attention recently. See Building 21 November 2014 (“Is BIM what it says on the tin?”, page 30), for instance. The apparent conflict as to whether BIM is really a facet of design, a design tool or more to do with process, co-ordination and visualisation is revealing of the issues which may arise in adopting BIM. Further, a lot of attention has focused on the process itself, how it fits into the construction process and the benefits it can bring. However, a new process like BIM brings with it some other more legal issues that might be worth considering.

First, when will BIM become the accepted normal or the standard such that a reasonably competent consultant should be recommending it is used by a client? Does the size or complexity of the project factor into that advice and at what point does the case for using BIM become such that it is negligent not to recommend its use?

These are not easy issues. The standard of professional performance which is adjudicated upon by the courts has a couple of concepts which have to be considered. The backdrop is the old Bolam vs Friern Hospital Management Committee test concerning professional negligence. This basically says that so long as the professional meets the standard of a reasonable body of similar professionals claiming to have similar skills, that professional will not be found negligent. So the standard is not an absolute. It depends on the circumstances.

Quite when does it become the standard approach where, acting reasonably, a consultant should recommend that BIM is adopted?

Crucially therefore it depends on the state of knowledge and practice current at the time of performance. It is no good, for instance, accusing a professional of negligence 10 years ago by judging their performance against what is expected of them now. From this, one can start to see the problems which arise with a rapidly developing area such as BIM. Quite when does it become the standard approach where, acting reasonably, a consultant should recommend that it is adopted? The answer to that question is likely to vary over time and by reference to how BIM itself develops and the projects to which it should be considered for, based on issues around cost and risk.

And just who is the professional subject to the scrutiny of the court for deciding to adopt BIM? Is it the architect or the engineer or the project manager who is to be judged in terms of the initial issue of whether to adopt BIM? All could have good grounds for saying that the decision was not to be based solely on their advice. The architect and engineer would no doubt say that they were purely looking at the issue of whether to adopt BIM from a technical performance-related aspect. A project manager or cost consultant might be involved not from a technical standpoint but from a cost/benefit analysis (and that in itself may involve some difficult questions as to exactly what potential risks and costs the process was managing). Case law suggests that it is rare for the courts to hold that one professional should be checking or second guessing the performance of another, especially when they are of a different discipline.

If the decision is to use BIM, is there yet such a discipline as BIM manager? If so what are the standards of that professional? No doubt a fair few readers will recall the court deciding in Royal Brompton Hospital NHS Trust vs Frederick A Hammond and others in 2003 that project management was only just emerging as a discipline and therefore, for the purposes of judging professional performance, much would depend on the surrounding duties and obligations of others together with the express written obligations of the project manager. Put simply, you rely on implied terms to fill in the gaps at your peril. A similar health warning probably applies to anyone contemplating taking advice on using BIM at this stage in its development.

It is therefore vital to work out who is going to take the lead in respect of the advice and decision to use BIM and the actual lead role in delivering BIM and then carefully define those obligations in writing. Also think about whether or not the professional is insured to advise around adopting BIM or being responsible for its effective implementation.

These additional considerations may ultimately mean that BIM is not necessarily all good news. It can potentially front load project input, increase cost and restrict the ability to explore changes. Just because it is new and potentially powerful as a tool does not make its adoption necessarily right.

James Bessey is a partner in the construction, infrastructure and projects department at DWF