Buro Happold’s May Winfield of industry group BIM4Legal looks at the BIM legal basics when incorporating BIM into contracts in order to minimise risk and avoid disputes
In 2016, the UK government’s Construction Strategy mandated the use of BIM within a space of five years. Fast forward to 2023 and the UK remains a world leader in the implementation of BIM and the issue of BIM standards and documentation. Indeed, the PAS1192 suite of standards formed the basis of the ISO19650 international standards that have been implemented worldwide.
However, do we all agree what BIM, or Building Information Modelling, is? Is it even an appropriate term now the ISO19650 standards instead refer to Information Modelling? The software, technology and some processes comprising BIM have arguably been around for a couple of decades. The UK government’s Construction Strategy, though, really brought it to the attention of clients and the industry – and the pilot projects and information that followed encouraged wider adoption in the private sector as well, who sought to benefit from the improvements in cost, time, quality and collaboration.
As BIM is essentially a compilation of processes, software and ways of working, increasing adoption didn’t mean a corresponding clear or standardised meaning, as illustrated by the 2018 Winfield Rock Report, where all 44 of its interviewees provided wildly different definitions for “BIM” and “Level 2”. Different parties may use different software, different processes and different ways of interaction in their implementation of BIM.
What all that essentially means is that when you see “achieve BIM” or a requirement to do some “BIM” or “Level 2 BIM” in a contract with no further substantive detail, you are accepting a lack of contractual or legal certainty as to what you need to do to fully fulfil this obligation.
Lack of Level 2 BIM under the ISO19650 causes uncertainty
What if the client had, innocently, assumed it would include more models, with more detailed content, than you budgeted for? Who owns the various elements that make up a model and BIM process, eg the existing and created data, COBie data sheets, objects in the model and the model itself? Who bears liability and risk for the corruption of the 3D models during upload? Can a party rely on all the content of your BIM model and data, even if you haven’t checked and completed all of it? The answer may not be either straightforward or risk-free.
The ISO19650 has added an additional complexity in getting rid of “Levels” and replacing them with stages and an overall obligation to provide “BIM in accordance with ISO19650”. It is currently not uncommon for tenders to require “Level 2 BIM in accordance with ISO19650”. Given that there is no Level 2 under the ISO19650 standards, this mixing of terminology opens up a host of uncertainties for liability and responsibilities.
Don’t believe me that there is no Level 2 under the ISO19650 standard? The UK BIM Framework website, as approved and recommended by the UK government in the Construction Playbook and the Information Management Mandate, gives helpful guidance on that point.
Attend the BIM legal basics event which will shed light on BIM-related risks and disputes
In the exciting embracement of BIM by the industry, and all the benefits it brings, one thing that seems to get forgotten – or at least sidelined – is the impact on contract interpretation/obligations and risk. There remains a common misconception that BIM does not change obligations, lead to disputes or increase certain risks. This is simply untrue. While there are some reported court cases in Europe regarding BIM, the courts in the UK appear to have rarely encountered any mention of BIM, save for one occasion (the case of Trant v Mott MacDonald). This is not because there are no issues but is likely simply reflective of the popularity of alternative dispute resolution processes like adjudication and mediation to resolve disputes quickly and discretely.
In a forthcoming in-person event by the industry group BIM4Legal, BIM legal specialists May Winfield, Simon Lewis and Sarah Keyte will shed light on the common types of BIM-related disputes.
They will also be going back to BIM legal basics, contemplating the legal definition of BIM and how to effectively incorporate it into contracts.
Register for free to attend the 23 March London event by clicking here.
May Winfield
Global director of commercial, legal and digital risks
Buro Happold
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