If left untackled, inconsistencies in the ways that BIM is defined in legal contracts could pave the way to disputes, warns construction solicitor May Winfield
There’s a common adage about contracts: the best place for them is the bottom drawer. That’s all well and good in the honeymoon period, when everyone’s getting along, but as any lawyer will tell you, the minute a dispute arises, you can be sure that the drawers will be flung open and those contracts will start getting a lot of attention.
The simple fact is that while everyone agrees that collaboration is essential to our industry, both collaboration and good nature can go out of the window when parties (and/or their insurers) are seeking to establish liability and recover losses and damages.
The BIM process is, by its nature, collaborative. BIM-supportive contract terms, meanwhile, assist in providing certainty and efficiency, so that parties have a clear understanding of their respective roles and responsibilities 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 I am conducting with fellow construction lawyer Sarah Rock of Gowling WLG, on behalf of the UK BIM Alliance. [Readers are encouraged to complete the survey here].
According to the 2017 NBS National BIM Report, only 25% of respondents reported using the CIC BIM Protocol and only 38% reported 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: what is everyone else using or relying on?
I recall reading in the NBS National BIM Report that 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 of our industry to significant change.
So, mindset is certainly one of the biggest hurdles to overcome in BIM adoption; but I would argue that 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.
May Winfield is a senior solicitor, most recently at Carillion and author of the Society of Construction Law paper, Building Information Modelling: The Legal Frontier – Overcoming Legal and Contractual Obstacles [tinyurl.com/BIM-Legal]. You can also find May on Twitter: @Buildlaw_Arttea
The importance of clear contract terms that set out parties’ positions is increased 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 I doubt that any of those reading this would want to be the expensive test court cases to establish such legal principles.
Indeed, as many readers will be aware, we recently saw the first ‘BIM’ case in Trant Engineering v Mott Macdonald. Without rehashing the facts of the case, I note that both parties would have incurred considerable legal fees, and great costs to their commercial relationship, in pursuing this case all the way to the Supreme Court.
This formal dispute likely could have been partly or wholly avoided had the parties had clear contract terms, setting out their respective rights and duties as regards access to the common data environment (CDE), rather than needing to seek a court’s interpretation of their implied or common law rights, and all the considerable costs that implies.
Looking briefly at what a BIM-supportive contract framework may look like, it would normally need to cover areas of:
• Process, data and interoperability
• Standardisation of processes and documents
• Copyright and intellectual property
• Risk allocation
• Collaboration (because BIM cannot fully work without collaboration)
There is no doubt that BIM is an important and exciting development in our industry and the catalyst for increased use of other innovations, such as Augmented Reality (AR), Virtual Reality (VR), sensors and drones. However, as with any change in ways of working, BIM brings with it new legal issues and risks that need to be clarified and dealt with in contract documents and through open discussion, in order to avoid unnecessary disputes and misunderstandings. This will enable BIM to be utilised to its maximum beneficial effect.
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