Contact: Jessica Taylor; Clarkslegal LLP (Reading, England)
Building Information Modelling is its official label; but BIM is essentially about effective sharing and management of information for the collective benefit of all involved on a construction project.
Central Government through the Cabinet Office, as part of its Construction Strategy, is co-ordinating the Government's drive to develop standards enabling all members of the supply chain to work together using BIM to achieve its goal of fully collaborative 3D BIM for public sector projects (with all project and asset information, documentation and data being electronic) as a minimum by 2016. This is BIM level 2 or collaborative BIM where each party creates and maintains its own model with a common interface, facilitating collaboration and the sharing of information between models so that there is a series of linked models and other information into a combined model.
In terms of legal changes the Government has stated that: "a graduated approach to increasing the extent of BIM utilisation can be adopted without heavy redrafting of contracts".
The Construction Industry Council (CIC) and others including the Royal Institute of British Architects (RIBA) and the Building Services Research and Information Association (BSRIA) have developed documentation to enable a wider understanding, acceptance and adoption of BIM on projects of all sizes from project inception to post-construction soft landings.
For BIM to be effective legal frameworks need to be in place. Collaborative concepts must be converted into contractual rights and obligations. Clear lines of responsibility between designers including specialists down the supply chain must be established through contract and legally enforceable mechanisms.
There are already a number of published BIM contract documents.
The CIC has recently published its own form of BIM Protocol document with appendices, guidance notes and model contract amendments. It is intended to be expressly incorporated into all direct contracts between the Employer and the Project Team Members.
The JCT has published its Public Sector Supplement revised in 2011 which provides for the incorporation of BIM covering all JCT contracts. It emphasises the importance of incorporation of BIM Protocols into individual JCT Contracts and their harmonisation for example with Design Submission Procedures, Information Release Schedules and communication protocols.
PPC 2000 is set up for use for BIM level 2. It provides a single contractual hub allowing the design team to retain their own intellectual property rights and to licence material put into the BIM model to the other project team members. It also clearly sets out the role of lead designer as coordinator of design.
NEC3 (April 2013 edition) provides for the incorporation of the CIC BIM Protocol in the suite of NEC3 Contracts including the Engineering and Construction Contract and the Professional Services Contract.
Fully integrated BIM delivery means an integrated contractual framework for consultants as well. BIM Level 2 still involves predominantly a series of individual consultants' appointments and they need to include express obligations to collaborate fully and share risk; including express contractual obligations on lead designers for integration of the design. The BIM protocol must be incorporated into each appointment and obligations regarding transferring models and information need to be included.
BIM 2 currently envisages the appointment of a BIM Manager or BIM Information Manager. The role of the BIM Manager should be clearly spelled out in the BIM protocol. The appointment must set out the scope of services and the scope of liability; and should include powers when seeking or requiring information from others. The BIM Manager ideally should be appointed by the client at an early stage and will have a crucial role in managing the information flow; but the BIM Manager does not design and is not responsible for design coordination or for clash detection but will be responsible for information planning and control procedures.
BIM protocols should become standard construction contract documents incorporated into all contracts between the employer and the project team setting out a detailed project process identifying the BIM level required; who develops the content; the applicable standards; who will be authorised to use the content, for what purpose; how the content will be coordinated and managed; who will own what; and how information incapabilities will be resolved.
Copyright should not be a barrier to BIM. The standard position is intended to be that copyright in the combined model would vest in the Employer ultimately; with the intellectual property rights of individual designers clearly set out.
An information plan document should be incorporated into the protocol covering information requirements, procedures and structures across roles and access rights; and should be managed monitored and maintained by the BIM Manager on behalf of the Employer. An effective protocol will need to drill down into each individual contract identifying responsibilities for information flow and coordination within a discipline and across disciplines.
Insurance is another key area of concern regarding BIM implementation. Collaboration can mean earlier clash detection and therefore resolution; thereby reducing the risk of potential problems during and after construction. Existing insurance models just about work for BIM 2 but would need review on a project-specific basis. Clear lines of liability still need to be set out in contract documents. Greater collaboration can make it difficult to establish who is at fault when something goes wrong; so careful drafting of contracts and liaison with insurers is still required. Single project insurance is considered to be one possible answer.
The Government's new tool for aligning design and construction with operational asset management is known as Government Soft Landings and reflects the work undertaken by BSRIA to develop framework documentation and process maps extending the duties of the team post-construction and during the first 3 years of occupation. This initiative is supported by major contractors; and the framework helps build and maintain relationships after practical completion helping FM providers secure the best use of their buildings using a common synchronised database.
Those pitching for public sector work will have to embrace BIM with all its associated changes in business culture. The Government believes BIM is a positive driver for change in the construction industry overall and which can be incorporated into construction contracts without too much fuss.
We are already advising clients and providing contract wording to incorporate BIM; and we anticipate that BIM Protocols and construction contracts will become more detailed and sophisticated over the next few years as BIM develops and becomes more embedded in the industry.
