BIM’s legal framework is still being formulated

Hannah Mycock-Overell, senior solicitor at Clarkslegal, analyses the legal landscape in light of the recent update to the BIM Protocol and the Winfield-Rock report.

BIM has a huge potential for improving collaboration, particularly early stage collaboration, in construction and thereby reducing disputes and performance gap.

The problem is that this potential is not being explored by large proportions of the industry. There is limited take-up of BIM, particularly among the private sector. Reasons for this limited take-up include:

A lack of knowledge of what BIM is, how it can be used, and the benefits it brings – if you don’t know about it, why would you choose it?

A lack of consensus on what BIM means – if different people understand it to mean something different in practice, it’s difficult to implement it successfully

A lack of standardisation in the proprietary programmes used, and no standardised non-proprietary format. This is a practical barrier for SMEs, because of the upfront expense in acquiring and learning how to use the different programmes. However, this at least is improving: use of Autodesk’s Revit increased from 31% in the 2016 NBS National BIM report to 41% in the 2017 Report.

The limited take-up on private sector projects means legal issues are still being explored. There are some common themes but some will be unique to individual projects/types of projects.

Another challenge is the approach to BIM in the project’s construction contract and consultant appointments. Construction contracts set “the rules of the game”. But you need to (a) ensure they address all relevant scenarios and (b) make sure the parties know the rules, i.e. what the contract provisions are.

Unclear contracts lead to disputes when events arise which fall through the gaps of the drafting. Parties are familiar with common types of amendments to standard form contracts, but many are not yet familiar with amendments to incorporate BIM obligations and deal with issues arising.

I would far rather advise and assist with drafting/negotiating a contract deal with issues as far as possible than have clients ask me to help with BIM disputes due to contract issues. When reviewing a contract, I always ask for technical schedules or flag the need for their review (if not yet available).

These can contain relevant obligations which need to be considered in the context of the whole contract document. (NB this applies not only to BIM but all technical schedules, as addressed in MT. Hojgaard v E.On)

The recently published Winfield Rock Report is hugely important because it brings together and assesses the current state of knowledge and practice for BIM legal and contractual issues. The key issues it highlights as needing to be considered for any BIM project are:

1. What does BIM mean on that project?

There is no standard definition of what BIM or “BIM Level 2” means – so it should be made clear in terms of parties’ rights, obligations, and deliverables.

2. How is the project going to use the PAS 1192 standards?

Are they treated as guidance or requirements? Are they all applicable or only parts of them? This needs to be decided on a project-by-project basis and should be set out in the contractual documents.

3. Drafting of the EIR (Employer’s Information Requirements) is crucial – if the client isn’t clear on how it sees BIM working and what it wants from it, how can the project team comply and deliver?

There is no standard EIR form yet, but any standard form would still need reviewing on each project.
JCT and NEC have BIM-specific provisions – but as with any other clause they need to be reviewed to ensure suitability for each specific project.

4. What is the status of the BIM Protocol?

In case of conflict, which takes priority – the Protocol or the terms of the underlying contract? The JCT standard form allows for the Protocol. There used to be a problem because the JCT said that the underlying contract took priority, but the old BIM Protocol said the Protocol took priority.

The new CIC BIM Protocol, released last month, addresses this by amending the Protocol Priority of Documents clause so that the Protocol only takes priority for clauses encompassing BIM.

However, there is still scope for conflict and users will still need to cross check the provisions to ensure they are consistent. As an example, both the Protocol and the JCT 2016 D&B contract include clauses flowing obligations down the supply chain, but are not worded the same – which takes priority?

The NEC standard forms don’t allow for the Protocol, and so if it is to be used on an NEC Project, bespoke Z clauses will be needed.

The new BIM Protocol has a number of changes, addressing concerns raised since the first edition was published in 2013. These include:

• New clauses and terminology in light of developments over the last few years;
• Alignment of the timeframes for compliance with the main contract, by making compliance with the Responsibility Matrix subject to any extension of time applicable under the underlying contract;
• Changes to the IPR (intellectual property rights) provisions, relaxing the provisions in the Protocol so that they only apply where the underlying contract doesn’t have IPR provisions dealing with BIM materials;
• A new section of clauses dealing with security based on PAS 1192-5; and
• The removal of some contentious clauses from the first edition, including the statement that the project team does not warrant the integrity of electronic data.

If you are going to use the new Protocol, you should make sure you are familiar with the changes made and consider whether there are any further amendments you need to make.

What is the status of the BIM Execution Plan (BEP)? Opinions differ on whether this should be a contractual document at all, because it is often incomplete or changing at time of execution of contracts, and there is a large administrative burden in enforcing it.

Do the contract documents – the main contract terms, the Protocol, EIR, and BEP – all use the same definitions? This needs to be carefully checked every time: inconsistency sows the seeds of disputes.

So what conclusions do I draw from this?

Education is needed across the construction industry about BIM and its benefits. Until we start having the conversations about how it can be used, we can’t take advantage of it.

The onus is on clients to lead a culture change, but SME contractors and designers also need to position themselves so as to be able to take up BIM projects when the opportunity arises.

All contracts on BIM projects need to be carefully drafted and cross-checked to reduce the risk of confusion and future disputes. Lawyers are becoming better at being more proactive, educated on the technical issues, and engaging in dialogue with clients to ensure contracts achieve what clients actually want and provide protection where needed.

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