Edward Bingham of engineering services company, URS, and Tim Claremont from law firm Browne Jacobson explore some of the challenges, both legal and non-legal, posed by BIM Level 2 implementation. Edward Bingham of engineering services company, URS land Tim Claremont from law firm Browne Jacobson
The 2016 deadline for Building Information Modelling (BIM) level 2 use in all government-led projects in the UK raises a number of challenges that will require changes to the way things are done.
Legal challenges exist. Traditionally, building contracts are between two parties and there are no direct contracts between suppliers on the same tier. Does BIM require changes to existing contractual arrangements or the creation of new direct contractual relationships?
Successful BIM implementation will address a few key elements: people, collaboration processes, technology, procurement and the measurement of costs and benefits.
The right team
The implementation of BIM starts with a review of existing data workflows, robustly challenging established processes and embedded mentalities on the ‘way we have always done things’.
This work immediately recognises new and efficient data streams to be explored and exposes challenges to business leaders on how to manage ingrained cultural working practices. Selling and demonstrating the benefits of change is paramount to driving changes and influencing behaviours in the ‘people’ element of collaboration.
The solution requires an understanding of the additional roles and responsibilities created by BIM to ensure that teams are appropriately resourced, structured and trained to respond to the changes.
Managing data flow
BIM maturity Level 2 requires the development of federated information models stored within the central Common Data Environment (CDE) as the ‘single source of truth’ for use by all project stakeholders.
The CDE facilitates the efficient mobilisation of design teams in different locations and a more efficient use of resources. The result of this is additional quality control with reduction in costs and in waste generated through duplication of information.
The availability of accurate, interoperable information models within the CDE is critical and. accordingly, collaboration processes must be developed and implemented. These processes will provide the necessary structure to ensure that models shared for co-ordination are capable of delivering the required input, output and levels of definition and detail.
Challenges to this new collaborative sharing process include the volume of data, the need to review and establish revised internal checking, and formal verification procedures of the model and object designs. A consistent approach to quality control is of paramount importance, such as version and status control processes as well as modification and revision management.
The creation of an intelligent 3D model base, spatially co-ordinated, with meta-data ensures a more efficient delivery process for clients, with real usable outputs for quantity measurement, cost estimation and programming over more traditional methods.
Models are allowed a higher status than drawings, which facilitate a real time view of a project at any stage within the project lifecycle and continuous review and mark-up process using new BIM authoring and review technologies.
In response to this technology challenge, training of users for both undertaking the design within the new technologies, as well as the verification and end users is paramount. With new software may come additional hardware challenges and it is essential that an appropriate level of investment in both IT equipment and support is made.
Client input is critical
As part of BIM implementation, clients and their advisors will be required to consider procurement and the resultant changes to established procedures with its reliance on collaboration between parties.
Publicly Accepted Specification 1192-2 (PAS 1192) provides a suitable roadmap for the implementation of changes to the procurement process, with the development of Employer’s Information Requirements in parallel to the Employer’s Requirements and the adoption of a suitable BIM Protocol to provide the legal context for BIM within the form of contract.
The development of Employer’s Information Requirements (EIR) requires clients to carefully consider their future use of the Information Model for operation and maintenance activities, where it is recognised that BIM presents the most significant benefits.
Once these future requirements are established, associated metadata and coding standards, reflecting the requirements of British Standard BS 1192, can be developed and incorporated into the EIR.
With an increased reliance on information models comes the potential for changes to accepted limits of liabilities. In the absence of legal precedents, clients and their advisors need to be aware of, and respond to, the market’s response to such changes in liabilities.
BIM is in a position of relative infancy in its application to the UK infrastructure market, with a number of ‘pilot projects’ being used as test beds for adoption and the evolution of today’s BIM standards.
As anticipated, emerging findings from these pilot projects are affirming the benefits that can be realised at design phase for all project stakeholders, from the 3D visualisations, clash detection and ‘build it twice’ mentality. However, given its relative infancy, there are a limited number of projects that provide a full record of costs, and importantly benefits, across the full project lifecycle.
This is particularly important for BIM given the general acceptance that the benefits of BIM are realised during the operations and maintenance phase of the project lifecycle.
Practical tips for contracts
Any potential changes to existing contracts will depend on what level of BIM is being used. The UK government is mandating BIM Level 2. This requires few amendments to current standard form contracts, since it presents data in specific BIM databases that may include information about cost or programming, but there is no single database for all such information and commercial data is held separately.
It may help to view each model as a drawing or design in the traditional sense — assuming the contract clearly defines roles and obligations, they will not change significantly.
On a BIM-enabled project BIM will need to be addressed in building contracts and professional appointments in a number of ways set out below. If the project goes beyond Level 2, further changes will be required.
Use a BIM protocol
A BIM protocol is a document setting out the practical ways in which BIM will be implemented. Different protocols do this in different ways. The CIC BIM protocol was commissioned by the UK government’s BIM Implementation Task Group and is likely to become the benchmark for Level 2 projects in the short to medium term. It can slot into existing contractual relationships.
Points to note are:
It takes priority over other contract documents — so check your contract for a similar priority clause to avoid clashes.
In keeping with the UK government’s vision of ‘data drops’, all Project Team Members are obliged to produce BIM Models to the Levels of Detail provided in Appendix 1 — so make sure that the project specific information is properly filled out and clearly defined.
Intellectual property rights are retained by the consultant and modelling output is licensed / sub-licensed to the Employer — this will require amendment e.g., if the employer wishes to own the intellectual property produced by the project team in relation to the BIM.
BIM models must be prepared subject to the duty of skill and care in the underlying contract. Other obligations (e.g., delivering the models), rely on a ‘reasonable endeavours’ obligation.
The employer bears the risk of any software failure or corruption, unless a project team member has failed to comply with the protocol.
Incorporate BIM protocol
A BIM protocol will need to be incorporated into a contract. Drafting is relatively straightforward. JCT, NEC and CIC forms have published suggested wording.
Identify which version of a protocol is to be used. Avoid using terms like ‘the latest version’ as this can result in different versions being incorporated into different contracts on the same project.
Make sure that the terms used in the protocol are compatible with the terms in the relevant contract.
Amendments to a bespoke building contract will need to be tailored to fit with the other contract provisions. Issues to consider include:
Is an express obligation needed to comply with the BIM protocol or can the BIM protocol be identified elsewhere?
Should the contractor be obliged to procure that its professional consultants, sub-contractors and suppliers will comply with the BIM protocol?
Schedule of services
Very few major publishers of standard form professional appointments have amended their documents in light of BIM. In addition to the bespoke contract amendments above, consider if the scope of services / work stages require amendment, or if the professional appointment should expressly require each member of the professional team to comply with the requirements of the BIM information manager.
The CIC Best Practice Guide for Professional Indemnity Insurance suggests that insurers currently consider that the effect on premiums of Level 2 BIM should be minimal. It recommends that when undertaking BIM for the first time, check with insurers / brokers before commencing a project to make sure everyone is happy with the contractual arrangements and roles.
BIM Level 2 should not alter traditional design roles and responsibilities. Despite the new technology and new way of producing designs, it is far more important to understand when and what everyone is being asked to provide in terms of BIM. The design brief and the ongoing obligation to review that design must be understood.
BIM Level 3 will require far greater sharing of information and horizontal co-operation. As a result, it is likely to require relatively widespread changes to building contracts and professional appointments. However, at this stage the industry as a whole has done little more than identify areas of concern and detailed drafting is some way off.
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