Rightly, we’re all getting excited over Building Information Modelling, but if you don’t get your head around some of the contractual implications, things could get heated
Building Information Modelling (BIM) is the integration of process and technology and, for the few still uninitiated, it is an information-rich digital model of a building with bells on. “BIM
speak” is everywhere at the moment as its use presents the potential for significant savings in the cost and time required to construct and maintain buildings - and not to forget that the government intends to require the use of BIM on all public projects by 2016.
However, there are several legal issues associated with its use that need attention.
Before considering these legal issues, we first need to be clear whether we are referring to “Level 2” BIM or “Level 3” BIM. This terminology comes from the Bew-Richards BIM Maturity Model, which illustrates the journey from the more or less ubiquitous 2D CAD (aka Level 2 BIM) to 3D modelling and then the intelligent BIM models (iBIM) which will improve the management and delivery of capital projects (Level 3 BIM).
Some of the issues to grapple with are:
- The integration of BIM into the contractual relationship of the parties, ideally through a BIM implementation plan. As others have commented before, contributing to or chipping into someone else’s model could, inadvertently, saddle one with extensive design responsibility. This is why collaboration is the way this baby will swing. At Level 2 BIM it should be possible to propose simple contractual amendments that are comprehensive and cover all stages of BIM development. However, at Level 3 BIM, due to the substantial nature of the changes this level brings, it will be preferable to draft new form of contracts to deal with the various relationships affected by the BIM working methods.
- The alternative proposition is the incorporation of legal and procedural issues in a “BIM Protocol”, which would be a set
of amendments to the main contract and consultant appointments to make them suitable for BIM. The amendments could then be incorporated into the various agreements used for the project, ie employer’s requirements (ERs) in a JCT contract or the works information document in a NEC3. This permits parties to hang on to the contracts they are accustomed to while adopting BIM.
- Interestingly JCT says that insofar as BIM protocols are concerned, “the existing JCT conditions appear adequate; the primary requirement is simply integration of
BIM protocols through inclusion in the preliminaries/employer’s requirements”. Mmmm, I am not so sure about that. NBS’s own website rightly points out that in practice the legal terms of the BIM protocol could conflict with the sections of the principal contract. Therefore, if say, part of the ERs in the JCT Standard Building Contract adopted a BIM protocol, clause 1.3 would give priority to the terms of the JCT contract over the BIM protocol. It is therefore paramount to provide for the priority of the BIM protocol over other contract documents.
- Design responsibility: it will be very difficult to ensure that design professionals will always be in charge of the creation and modification of the data in the model. This is where the development of “model manager” and his role/obligations becomes critical. An important aspect of the model manager is to spot the issues in the model and co-ordinate the building information (not necessarily the design). As such, the legal issues include: who appoints the model manager, who bears this cost and what is the extent of the model manager’s liability? These decisions will be influenced by the procurement method and which party is best able to manage this risk.
- Ownership of the BIM model and data. An employer may believe that they are entitled to own the model; however, the rights of the designers and the suppliers need to be protected as well.
- Allocation of risks: taking responsibility for updating BIM data and ensuring its accuracy involves a significant amount of risk. Issues of complicated indemnities by BIM users and limited warranties and disclaimers of liability by designers will need to be resolved.
- Economic loss rule: the use of Level 3 BIM may tend to support a contractor’s claim that it should be able to recoup its economic losses if he does not have a contract with the defendant. Liability for economic loss due to negligent misstatement is essentially confined to cases where the statement or advice is given to a known recipient for a specific purpose of which the maker of the statement is aware that the recipient has relied on it and acted to his detriment. One can see this developing legs where BIM goes wrong.
Level 2 BIM should not swing legal risk and responsibilities, but it will decrease the overall risk of all parties if issues are identified early. However an issue that seems to hold back the legal dialogue is the apparent desire to focus attention solely on legal issues arising at Level 2 when things will soon go sailing past that buoy.
We are on the crest of a wave; I am ready to surf. Are you?
Simon Tolson is senior partner in Fenwick Elliott