BIM – make sure you’re not left behind …

Citation

Mallik, A. and Irving, G. (2012), "BIM – make sure you’re not left behind …", Strategic Direction, Vol. 28 No. 9. https://doi.org/10.1108/sd.2012.05628iaa.002

BIM – make sure you’re not left behind …

Article type: Corporate Law Outlook From: Strategic Direction, Volume 28, Issue 9

Building Information Modelling (or “BIM”) is fast making an impact on the construction industry. It has already been implemented on such high profile projects as the £20m restoration of Blackpool Tower, the £100m remodelling and refurbishment of Manchester’s Central Library and the £4bn construction of Heathrow’s Terminal 5. Its prevalence is likely to continue as the Government has indicated its general support for BIM and aims that it will be compulsory on all public projects above a certain size by 2016.

But what is BIM? BIM is computer software which provides a real-life working model of the project. It provides design specification but is also a database containing information fundamental to the construction and operation of the project (such as the cost, delivery and availability of materials, operational costs etc). It provides immediate access to details that can inform decisions in value engineering and design during the initial stages of the project. It can also remain live throughout a building’s existence, to provide ongoing information on operation and maintenance, lifecycle costs and energy performance.

Contractors already using BIM have reported that it has assisted in managing cost overruns and delay and has provided a competitive edge in tendering due to better “risk pricing” and the attractiveness of lifecycle use of BIM for the employer.

So what are the issues to be aware of when using BIM?

Collaborative procurement

The BIM model takes information from all of the parties involved in the project – not just the design professionals. This means that it is necessary for all parties to take an integrated and combined approach to the design and construction of the project. Partnering and collaborative procurement contracts, such as NEC3, JCT’s Construction Excellence or ACA’s PPC2000 are likely to be increasingly used to deal with the merger of design liability. These contracts encourage collaboration by engaging all project participants on the same or similar terms so that the contracts are in effect integrated. Such standard form contracts however do not deal with the specific practical and design issues that arise when using a BIM model. Until standard contracts fully engage with the increased use of BIM, bespoke amendments will be necessary.

BIM protocol and BIM model manager

The BIM model permits contributions from a variety of sources and so it is essential to have mechanisms in place to ensure the integrity and reliability of the BIM Model. It is advisable therefore to devise and ensure compliance with a “BIM protocol”. This will require that a party making a design contribution to the BIM model must specify what level of dimensional accuracy their information provides and in particular whether it should take precedence over the other forms of design data within the BIM model. The BIM protocol may also state what access restrictions are in place for certain contributors, so that commercially sensitive information (such as preferred supplier rates) remains confidential. It will be also necessary to employ a “BIM model manager” to monitor and police the BIM protocol, monitor access to the BIM model and record any changes. Under a BIM protocol the parties should be obliged to inform the BIM model manager of any inaccuracies or errors found within the BIM data (for example dimensional miscalculations or supply costs or delivery dates) so that the BIM model manager can take steps to correct these.

Responsibility for design

The contractor will have to decide if its professional team should collaborate fully and share risk by being jointly and severally liable, or whether key members of the professional team, such as the architect or lead designer, retain principal responsibility for the integration of the design. The choice of either will effect the provisions of the consultant’s appointments, sub-contracts with a design input and the BIM protocol. The way risk is shared in a project will affect the insurance and indemnity provisions within such consultant appointments and design sub-contracts.

Copyright licences

Copyright licences will also have to be reconsidered to address the fact that the workability and adaptability of the BIM model requires those with design responsibility to impart with all of the features that constitute their design, such as the building codes, algorithms and applicable engineering principles. This is likely to result in consultants requiring increased fees for providing copyright licences. Consultants are also likely to require limitations on the number of copyright licences available, which may limit the employer’s ability to grant sub-licences and transfer its copyright licences to third parties.

Co-ordination with sub-contractors

It will be necessary to establish contractually how the information within the BIM model can be effectively communicated to all those lower down the contractual chain who may not have BIM software. It will also be necessary to establish a fair and rational system of priority for BIM designs and 2D dimensional drawings to ensure that duplication of work is minimised and to avoid the potential for any ambiguities within the BIM project.

Insurance

It is likely that “no fault” project insurance (i.e. insurance that is provided upon the occurrence of an event and does not depend on a party’s liability for such an event) will become commonplace on BIM projects. Such project insurance could be brokered and drafted according to the specific needs of each project.

Contractors who are well informed and make provision for these issues will be at an advantage to successfully embrace the new market on BIM.

If you would like any further information on any of the issues raised in this article, please contact: Anjon Mallik, Partner, Construction, on 0113 227 0227 or e-mail: anjon.mallik@gordonsllp.com; or Gemma Irving, Solicitor, Construction, on 0113 227 0203 or e-mail: gemma.irving@gordonsllp.com

Anjon Mallik and Gemma Irving Leeds and Bradford-based law firm Gordons.

Acknowledgements

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