BIM: Do the lawyers get it?

pbctoday.co.uk/news/bim-news/bim-do-the-lawyers-get-it/37854/

January 18, 2018

BIM News

January 18, 2018

1592

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
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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.
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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

Senior Associate

Gowling WLG

Tel: +44 (0)121 393 0311

Sarah.Rock@gowlingwlg.com

https://gowlingwlg.com/en/United-Kingdom

Twitter: @sarahrocklaw

May Winfield

Senior Solicitor

Carillion

may.winfield@carillionplc.com

www.carillionplc.com

Twitter: @BuildLaw_ArtTea

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