Tony Bingham’s provocative article kicked off a valuable debate. Let’s look at some of the truths about BIM

Steven Carey

Last month I gave a talk about BIM in conjunction with Dale Sinclair of Dyer at a construction event in central London.

I like to think my previous life as an engineer has made me adept at keeping up with the latest innovations - however, I do know my limits. I left the explanation of the technology to Dale (the fun part) and kept within my lawyer’s comfort zone - talking about risk and documents (what I thought was the slightly duller part). I really enjoyed the opportunity to learn more about BIM, getting to grips with the CIC protocol, and share my thoughts with a knowledgeable construction crowd.

Empirically the evidence suggests that the use of BIM is leading to a sleeker design process and less downtime on site. The clash detection software works

A matter of days later a spectacularly provocative piece by Tony Bingham in this publication kicked off a heated debate about BIM and the risk involved.

As far as I can make out a number of broad themes seem to emerge from Tony’s piece:

1. The BIM model ownership resides with the contractor
2. BIM dumps risk on to the contractor
3. It will not be more efficient or collaborative
4. BIM surrounds itself with meaningless buzzwords that find their way into the BIM protocol.

Yet what is the reality?

The general consensus (take it from someone like Dale who does proper work unlike us lawyers) is that BIM simply reflects in a more technologically advanced way how folks involved in the design and construction process have worked for donkeys’ years.
BIM does not itself bring into play the need to integrate different disciplines to ensure/look out for co-ordination, buildability, life cycle issues, etc. A number of legal issues may arise in relation to the change in medium but these are not issues that in my view fundamentally alter the current construction legal dynamics.

The role of BIM information manager is a new one and therefore raises questions about what the risk is for the consultant who assumes it. The protocol defines the “information manager” as the person employed to perform the “information management role”. I am told that insurers are of the view that undertaking this role should not be a cause for any undue concern, provided there is no design aspect: the lead designer (the architect or engineer) will still be responsible for the co-ordinated delivery of the design information, while the BIM information manager is simply co-ordinating management, processes and procedures. In fact such a role could be subsumed within the lead designer’s role and sit alongside its design role.

The BIM protocol is intended to be a contract document and in fact a closer inspection would show if anything that the risk profiles in it were project team member friendly. My suspicion is when people get to grips with it the protocol may be tightened up.
In terms of liability, the ability of the software to provide a clear audit trial means that it will arguably be easier to pin blame on the guilty party.

Efficiency? Well, empirically the evidence suggests that the use of BIM is leading to a sleeker design process and less downtime on site. The clash detection software works. What it is apparently encouraging is more upfront design of the building – which effectively is, to quote Tony’s phrase, “writing the script before going on stage”.

Perhaps BIM does contain “buzzwords” but luckily everyone that works with it who I have spoken to understands what they mean. Unfortunately us lawyers tend to stick to using those snappy Latin catchphrases that constitute buzzwords in our line of work.

A real positive is that SMEs seem to be embracing BIM and this is allowing them to compete with their larger peers - thus levelling the commercial playing field.

Well done Tony for getting the debate going … Now, how do I turn this computer off?

Steven Carey is Head of Construction and Engineering at Speechly Bircham LLP