BIM: Do the lawyers get it?

January 18, 2018

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Sarah Rock of Gowling WLG and May Winfield of Carillion discuss the initial findings of a UK BIM Alliance research project looking at the understanding of legal and contractual issues surrounding BIM among lawyers and those working within the industry

Almost everyone agrees that collaboration is essential to the future of the construction industry, particularly regarding BIM-enabled projects. The BIM process itself is by its nature collaborative and BIM-supportive contract terms assist in providing certainty and efficiency, giving parties a clear understanding of their respective roles from the outset.

However, there remain significant inconsistencies and differing views on the treatment of BIM within contracts. This is the topic of a research project we are conducting under the umbrella of the UK BIM Alliance. The project has thus far received well over 100 responses to an online survey looking at the state of the nation regarding BIM-enabled projects and the law.

We have also conducted one-on-one interviews with many leading organisations and individuals (including HS2, Battersea Power Station and Thames Tideway, as well as contractors, consultants, BIM specialists and private practice law firms). These interviews have allowed key players to share their views on how BIM is being adopted, what legal issues there are and what senior experts might like to see going forward.

According to the recent NBS BIM Survey 2017, just 25% of respondents reported using the CIC BIM Protocol and, in turn, only 38% using PAS1192-2: 2013. Given that a BIM Protocol and the PAS1192 suite of standards are widely accepted to be integral parts of BIM documentation, this begs the question as to what everyone else is using or relying on.

In the NBS survey, 93% of respondents agreed with the statement that “adopting BIM requires changes in workflow, practices and procedures”. However, such changes are still piecemeal and intermittent in many areas, possibly reflective of the resistance in our industry to significant change.

So, mindset is certainly one of the biggest hurdles to overcome in BIM adoption; but the right contract terms (which clarify and protect parties’ BIM positions) can be instrumental in effecting this change by promoting the right behaviours – for example, through obliged compliance with collaborative processes and open information sharing.

The importance of clear contract terms to set out parties’ positions is heightened by the lack of established common law rights and duties, and legally established meanings of BIM terms. It will be some years until we have a body of case law dealing with the common BIM issues and disputes, and we doubt that any of those reading this would want to be the expensive test case to establish such legal principles in the courts. The recent case of Trant Engineering v Mott Macdonald offered some guidance regarding the hosting of and access to the CDE but there is nothing else of note at the time of writing to offer a legal steer.

All of us will have seen contracts and/or tenders using the magic phrase…

“Do BIM”

…or in some cases “Achieve Level 2 BIM”. Neither “Level 2”, nor indeed “BIM” yet have any accepted, standard industry meaning, and indeed if one was to do a poll of 100 BIM-aware industry professionals, each would have a different view of what “Level 2 BIM” means, both in terms of duties/obligations and contract deliverables. A fact that has become clear, all too quickly, through our current research.

Ensuring the headline areas of a BIM-supportive contract framework are dealt with would ideally require a combination of the EIR, BIM Protocol or other contract schedules/sections containing BIM terms, BEP and any applicable and binding standards. It would be crucial to ensure consistency of BIM terms and processes across the project team and supply chain to avoid accidental gaps in liability or conflict between parties’ respective duties.

In some cases, you would require specific terms to reflect your own processes and risk management procedures, and the right BIM contract document suite can only be achieved via close liaison between the commercial and operational businesses with BIMaware lawyers, whether these be in-house or private practice. The businesses may find it helpful, in this regard, to go through the basic technical aspects and requirements of BIM, and the processes and risks involved, with their legal teams to provide them the necessary understanding to draft and advise.

There is no doubt that BIM is an important and exciting development within our industry, and has been the catalyst for increased use of other innovations, such as AR, VR, sensors and drones. However, as with any new process or change in way of working, BIM brings with it new legal issues and risks that need to be clarified and dealt with within the contract documents and through open discussion to avoid unnecessary disputes and misunderstandings, enabling BIM to be utilised to its maximum beneficial effect.

The degree of engagement with our research project (it is not often that competing lawyers are willing to sit down and talk to one another!) has been refreshing to see and displays that, while maintaining client confidentiality, lawyers can collaborate and work together for a common purpose. We will be publishing a report of our findings (incorporating both the online survey and the interviews) at the BIM Show Live 2018.

Sarah Rock