The pros, cons and technical benefits of using BIM are well rehearsed, but much less under discussion are the legal aspects of BIM. David McNiece from Quigg Golden Solicitors fills us in.
This article seeks to look only at the practical legal implications of BIM and why we as an industry seem to not only have missed a trick in appropriating it industry wide, but what the underlying reasons for this are.
In brief, there appears to be a real hesitancy towards BIM and the proper usage and adoption of it. Why? BIM as a model is not next generation, it is well within our grasp and if we look towards our American cousins or works being carried out in South East Asia, we in the UK are significantly behind in our use and understanding of BIM.
BIM as a management tool is what we should be striving towards. In terms of our procurement and contractual obligations and meeting governmental objectives, concentrating on innovation, collaboration and whole-life costs, BIM should be at the forefront of construction.
So what is it about BIM that we don’t want to embrace? Well, in my experience, it falls into four main camps:
- Resourcing;
- Lack of incentive;
- Lack of understanding;
- Fear of the unknown.
It is hard for these not to overlap, but each brings its own distinct stumbling block. These headings also have some overlap with specific legal principles.
The first obvious issue of resourcing is well rehearsed and speaks for itself. Money is tight and companies, both public and private, may not be in a position now to fully endorse BIM the way they should.
However, a lot of the problems that we are facing are nothing more than perceived problems. People look at BIM as new technology or an unknown; this has led to a hesitancy to embrace it. This hesitancy is highlighted by issues of public procurement, how BIM is used in contract, and a lack of understanding on intellectual property/copyright issues.
Is public procurement a stumbling block for BIM?
One of the most obvious problems with BIM is that it is not endorsed from the top down. It is (or at least should be) a public contract requirement, and there is a very strong argument that it should be the public sector itself that is encouraging or promoting the use of BIM (the hand that rocks the cradle and all that).
Ultimately, if the public sector does not encourage or even require the use of BIM, what incentive or need is there for contractors to actually spend time, money and resourcing in researching BIM or developing BIM departments?
So, why does the public sector not endorse BIM as it probably should?
From first-hand experience, it is not only a resourcing and knowledge issue (although this is a big part of it). If the client does not know about BIM, why would they want to base the award of a contract or the success of a project on something they do not understand themselves?
There is also the money issue that having a BIM project from the outset with no prior engagement or experience is going to cost money. Generally speaking this is untested and whenever there is a choice between “use something that might cost more money” or “tried and tested” it will always be the path of least resistance that is trod.
The flipside of this comes from the reforms of Lord Young in respect of SME participation in procurement processes. Lord Young’s reforms went to the heart of encouraging the use and involvement of SMEs. What better way to exclude smaller companies that do not have the abilities to resource and research a new form of technology, than requiring it in your tender process. Therefore, the inclusion of BIM in contracts where an SME could genuinely and competitively tender may be painting a target on the back of the contracting authority for a potential challenge.
What about BIM under contract?
One of the major problems again we are coming across in practice is how BIM is actually being used in the contract. It may be asked for at tender stage, the contract being awarded on that basis, and then in practice, BIM is not actually used at all.
The CIC BIM Protocol, of course, is a great start, but it is nothing more than a blank canvas on which to say, “so you are using BIM, now breathe life into the protocol”. There is also a major failing on behalf of drafters of standard form contracts for not actually encouraging or endorsing the use of BIM. Of course, it is impossible to make sure what is being included as there is very rarely going to be a “one size fits all” for how BIM should be used.
There is also hesitancy from specialist contractors not wanting to provide or submit information into the model as, after the project is complete or they have completed their term of contract, a competitor can gain access to all the information that has been put on the model by virtue of winning a contract. This is something that clients must address to allay fears and correct any misconception of “trade secrets” being released.
BIM is a good thing, but the Catch 22 of needing to understand BIM before we can use it (but not being able to use it because we don’t understand it) is something that we as an industry need to resolve.
David McNiece is an associate at Quigg Golden Solicitors
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I fully understand this blog’s reasoning. I wrote a book, BIM for Construction Clients, to help clients and their advisers to break into using BIM properly. I’m helping further by running client workshops on the key steps. I would be happy to show this to lawyers and project managers who are well placed to raise the subject with clients. After all, there can’t be a move to offsite construction without BIM, nor can clients expect any long-term rise in productivity or quality.
Interesting comment about SME’s. We are as a micro SME, about as small as you can get, less than 10 people and yet embraced the new technology since 2011, so don’t really get understand why an SME would use that excuse!. Most SME’s that get a look in on public contracts are over 100 strong.
With the government mandate coming into force last year, many government projects are obliged to specify BIM albeit the lack of client understanding of BIM is an accepted issue in the industry which can lead to different expectations (“that’s not what I thought ‘Level 2 BIM’ would give me” etc.). There is arguably a lack of external resources for clients (and some SMEs) to get up to speed and the government will hopefully address this with free training/resources as they have in, for example, Singapore. In some ways we are far advanced in our BIM journey than in the US, thanks to the impetus caused by the government mandate.
During my time drafting BIM contract terms and advising on BIM legal/contractual issues for a number of years, a clear contractual framework via a BIM Protocol has proven to be vital to avoid misaligned understandings and deal with the main legal issues (e.g. copyright, risk allocation, standardised processes). However, this plays a supporting role to the right mindset from the project team and a good BEP (to breathe life into the Protocol, as noted by the author above). Whilst contract terms are vital, it is this culture/mindset and BEP which will ultimately encourage and ensure the embracing of BIM (as a process, and not software).
I agree with May Winfield (above), the CIC BIM Protocol makes substantial progress in addressing the concerns of industry in areas such as a common standard of working, information requirements, and intellectual property rights. It is not ‘a blank canvas’, but rather a detailed and contractually binding essential.
Of course, such a Protocol must be implemented from the top down for it to be effective, but there is a ‘hesitancy to embrace’ BIM. A recent CIOB survey of clients (Aug 2017) showed that Almost half (49%) did not make BIM a requirement, this is only a marginal increase from the 2016 figure of 45%, demonstrating a reluctance from the client side.