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BIM – The key messages from the Winfield Rock Report

  • United Kingdom
  • Construction and engineering - Articles

19-04-2018

Introduction

May Winfield and Sarah Rock released their report on Overcoming the Legal and Contractual Barriers of BIM in association with the UK BIM Alliance on 28 February 2018 (“the Winfield Rock Report”). It is essential reading for anyone in construction.

Drawing on an initial online survey, the Winfield Rock Report features interviews with a number of key industry specialists, including contractors, consultants and both in-house and private practice lawyers, to determine the industry’s current understanding and legal uptake of BIM.

In this article we have highlighted some of the practical messages to take away from the report drawing on our own experiences.

BIM obligations should live in the legal terms

The Winfield Rock Report highlights that some lawyers have a perception that BIM was “CAD on steroids” and the authors had heard BIM being referred to as “simply fancy CAD”. This is not the case. BIM is not a just a piece of software which can be left to the technical documents.

BIM is a verb, it’s a process and a way of working, rather than a physical entity or computer programme. Therefore, there should be express duties on the contractual parties to regulate this way of working and promote the right behaviors to introduce BIM. For example, through obliged compliance with collaborative processes and open information sharing. This could go as far, as one respondent to the Winfield Rock Report suggested, to expressly linking provision of the BIM deliverables to the payment mechanism.

Likewise to achieve the benefits of BIM express drafting may be required. For example, risk mitigation through early clash detection is a major benefit of BIM but the contract should stipulate if additional time or money will be allowed for dealing with inconsistences and discrepancies once discovered.  

There is no universal definition of BIM  

The importance of clear contract terms to set out the parties’ positions is heightened by the lack of established common law rights and duties, and legally established meanings of BIM terms. Due to the lack of knowledge around BIM there can be an assumption by contract drafters that the technical people will know what “to do BIM” or “achieve BIM” will mean so will leave it at that.

The Winfield Rock Report highlights that a term to “Achieve Level 2 BIM” is not sufficient. Neither “Level 2”, nor indeed “BIM” yet have any accepted, standard industry meaning. Each of the industry recognized BIM experts interviewed for the Winfield Rock Report provided a different definition of BIM Level 2. No two people gave the same response.

Without further detail, this wide variation in understanding could at best result in the failure to achieve the costs savings and benefits BIM offers and at worse give rise to a real risk of unintentional disputes.

The Winfield Rock Report concludes that the definition of BIM Level 2 – and perhaps even BIM itself – should be assessed and defined on a project-by-project basis and incorporated in contracts accordingly. The Legal Questions Checklist discussed below will help scope the BIM requirements in order to define process on a project-by-project basis.

The BIM protocol needs reviewing  

Having established more than just “Achieve Level 2 BIM” is required, more considered BIM drafting might refer to compliance with a BIM Protocol. This is the approach taken by the JCT 2016 suite of contracts which allows the BIM Protocol to be identified in the Contract Particulars. However, the lack of knowledge and presumption by lawyers that this is a technical document and need not be reviewed can lead to the inadvertent incorporation of terms.

For example, a commonly adopted protocol is the Construction Industry Council (“CIC”) Protocol but this contains various issues, which were intended to give designers the confidence to work through BIM but may be less attractive to clients, including:

  • that the protocol takes priority over the rest of the contract terms;
  • that the duty of care may be less than that in the rest of the contract terms;
  • that there is a right to revoke or suspend a copyright licence for non-payment; and
  • that there is an exclusion of liability for electronic data after transmission.

Therefore, express drafting will be required to ensure off the shelf protocols are amended to suite specific projects just as an off the shelf contract would be amended. Only 23.33% of the respondents to the Winfield Rock Report used the CIC BIM Protocol unamended.

The Winfield Rock Report highlights that the lack of knowledge means BIM Protocols being inserted into contracts with incomplete appendices, or contracts referring to the CIC Protocol, but a completed copy of this document not in fact appearing in the contract documentation. The BIM Protocol used should of course also be consistent across the consultant appointments, building contract and down the supply chain.

The Winfield Rock Report also highlights that a Protocol may not be used at all and instead the specific BIM requirements incorporated expressly in to the terms of the contract or appointment.

The EIR and BEP needs incorporating

The Employer’s Information Requirements (“EIR”) is very well described in the Winfield Rock Report by using an analogy from the JCT D&B form of contract in that the EIR acts as the Employer’s Requirements for BIM. Its sets out to the team what is required to fulfil the BIM element of the project. The Winfield Rock Report highlights that the EIR is intended to be included as a contract document making its requirements contractually binding.

In reply to the Employer’s Requirements under a JCT D&B a contractor might provide the Contractor’s Proposals. In reply to the EIR, the supply team can provide the BIM Execution Plan (“BEP”). The Winfield Rock Report advises that the BEP is included as a contract document but that specific drafting is included to deal with the evolving nature of the BIM. We suggest this would be just as a programme might be updated through the life of a project.

One respondent to the Winfield Rock Report described the EIR and BEP as “the most vital documents to the process”.

Lawyers’ lack of knowledge

The Winfield Rock Report highlights that there is a perception that lawyers lack a sufficient understanding of BIM, viewing it as a technical matter and thereby remaining uninvolved in the review and completion of the BIM documentation. We agree with this perception. However, as the Winfield Rock Report notes, without an understanding of the commercial reasons and operational process of BIM, it is difficult for lawyers to be aware of what risks and opportunities BIM presents and then to draft the relevant and pertinent clauses to mitigate these risks and exploit these opportunities.

There is a large the large body of BIM centric websites and resources available to review but which lawyers may not know exist. For example, we recommend the JCT Practice Note: Building Information Modelling Collaborative and Integrated Team Working available here

The Winfield Rock Report notes that lawyers may not realise they need to raise BIM as an issue. To assist, the authors have prepared a non-exhaustive “Legal Questions Checklist” as an Appendix. We recommend lawyers use this as a starting point on the questions to ask their clients to obtain necessary information to draft and advise on BIM-enabled contracts, negotiations and other related issues. As a client, if your lawyer is not asking you for this information this is what you should be providing them with otherwise your contract may not sufficiently cover the BIM issues.

Clients’ lack of knowledge

The Winfield Rock Report does not entirely blame the lawyers’ lack of knowledge, it acknowledges that the legal community is further limited by their clients’ instructions; the clients may not be sufficiently BIM-aware and be unable to provide sufficient clarity of what they want in terms of risk allocation and scope of the BIM process. Where this is the case it is virtually impossible for lawyers to draft terms without clear and precise client instructions. We recommend that clients and lawyers should proactively work together to understand each other’s level of knowledge if possible calling in the assistance of the technical consultants on the project. Neither party should presume the other’s knowledge rather is should always be a topic for discussion.    

Be aware of the publically available specifications (PAS1192)

The Winfield Rock Report highlights the existence of the PAS1192. A series of some 10 freely available guidance notes prepared by the BIM Task Group. The interviews for the Winfield Rock Report found that there were differing views about the standards. Some interviewees found them too rigidly applied, with one interviewee noting that it had become a badge of honour to know them off by heart. Conversely, others found the standards too loose or vague. However, the interviewees were in general agreement that the standards were certainly an essential starting point. Despite this we would suggest many construction lawyers may not even know of their existence. They can be downloaded here.

Conclusion

The difficulty that the Winfield Rock Report highlights is that not enough lawyers are prepared to immerse themselves in BIM language and this means unclear ambiguous contracts, bad amendments and incoherent contract documents therefore, we recommend you do not stop at this Article but download and familiarise yourself with the full Winfield Rock Report available here

For more information contact

Thomas Taylor, Senior Associate

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