In brief - Everyone needs to agree on the rights and obligations of all BIM stakeholders before you enter into your project
When setting out the rights and responsibilities of participants in a BIM project, you should consider time and cost, collaboration and data input management, insurance, intellectual property and confidentiality.
Government releases strategy report on BIM
There is no question that Building Information Modelling in Australia is here to stay.
Since our last article on BIM in January 2012, Building Information Modelling – a new phase for the construction industry in Australia, and our BIM seminar in February 2012, the Department of Industry, Innovation, Science and Research and Tertiary Education released its report the National Building Information Modelling Initiative, Volume 1 Strategy in June 2012. The report outlined key recommendations for the implementation of BIM into the Australian construction industry, together with a blueprint for facilitating that implementation through various work programs.
Those key recommendations and work programs include:
- From 1 July 2016, all government building procurements to require full collaborative BIM, based on open standards for information exchange.
- Commonwealth and state governments should be encouraged to introduce mandatory use of BIM for their building procurements.
- Implementation of project work programs focused on issues such as procurement, BIM guidelines, education, BIM libraries and regulatory frameworks.
- A joint government and industry task force be established to oversee and facilitate the implementation of the report's recommendations and the adoption of BIM by the Australian government.
Development of codes, standards, protocols and standardised contracts
The blueprint outlined in the report proposed, amongst other things, the development of legal instruments and protocols over the 2012/2013 and 2013/2014 financial years, including standardised BIM contracts, appropriate codes and standards for the use of BIM on projects and protocols for the exchange of information underpinning BIM and collaborative practice.
While the report indicates that any mandatory incorporation of BIM into government projects is still a little way off, BIM continues to be widely used on a number of projects across Australia.
Until the legal instruments, protocols, guidelines and standards referred to in the report are developed, there remains a risk that parties to a project using a BIM remain exposed to the new risks and liabilities the use of a BIM introduces.
Key legal areas of concern on BIM projects
The Australian Institute of Architects and Consult Australia recently identified intellectual property, professional indemnity insurance, stakeholders' responsibilities, encouraging cooperation and "no blame" as the key areas of concern when considering legal issues associated with BIM. (See BIM Legal & Procurement, August 2012.)
Given the collaborative nature of BIMs, it is these issues which need to be most closely managed when starting a project incorporating a BIM so as to ensure that the risks associated with developing the BIM are appropriately allocated and the rights of the parties to use the intellectual property included in that BIM are effectively managed.
Collaborative or traditional construction contract formats?
As we highlighted in our seminars, the construction and engineering industry has been characterised by a quasi-military command and control structure, dating back to Roman times (some of the ethics and behaviour would be familiar to Romans as well). We asked whether the collaborative nature of BIM would sit easily with that kind of structure. Anecdotal material suggests a mixed response.
Some insist that collaborative contract formats such as Integrated Project Development, Lean Construction, alliancing or even NEC3 are essential and got the best out of BIM. Others suggest that the very dispersed nature of responsibility encouraged by BIM demands a strict traditional hard dollar contract.
Set out below are some issues for consideration when structuring the parties' rights and responsibilities for a project incorporating a BIM.
Intellectual property in a BIM context
As BIMs are often jointly built by a number of different parties across the lifecycle of a project, it is essential before embarking on a project using a BIM that the following issues are considered and agreed by the parties and incorporated into the appropriate legal instrument:
- Who owns the BIM? Is it the ultimate end user of the BIM (i.e. the owner of the building who retains the BIM for the purposes of facilities management)? Or does each party retain ownership of their own contribution and grant a project specific licence?
- What are the authorised uses of the BIM? Is it project specific or can the ultimate owner take the information and use it on other projects?
- When does a party's involvement in the BIM cease? As the BIM develops from a design model to a construction model, when do the parties cease to have involvement in, and rights to protection of the design, in the BIM?
Confidentiality agreements could encourage participants to share information
For a BIM to be effective it requires each project discipline to share all design information openly. Including a project specific confidentiality agreement at tender stage would go a long way to ensuring open discourse by all parties from the outset of the project while protecting against the dissemination of sensitive design information.
Collaboration and data input management - who is responsible for spotting problems?
The success of a BIM is arguably dependent on the efficient management of input into the BIM by each stakeholder and the identification of design clashes and inaccuracies. Being the person responsible for managing that process carries significant risk and the parties should carefully consider whether that BIM manager should be a representative of either party or an independent project manager.
Do your insurance arrangements cover your use of BIM on a project?
Have you discussed your use of a BIM on a project with your insurer? Whether as a design consultant or contractor, you may be exposed to claims for defects in a design incorporated in the BIM which your current insurance arrangements may not cover. Similarly, whoever is managing the BIM should also have appropriate professional indemnity insurance. After investing significant resources into the development of a BIM, any potential loss of design or documentation should be covered for all parties involved.
Time and cost
Should the dates and activities in the BIM take precedence over those in a wider contract program? Where possible, the BIM should be backed down into the contract program.
Should specific activities in a BIM constitute a direction? For example, where a design consultant who is not novated to the principal contractor inserts an amended design into the BIM, is that principal contractor bound to comply with that amended design?
Use of BIM is inevitably on the rise
In countries like Singapore, Norway, UK and the US, where government has led the way for the adoption of BIM by announcing an intention to adopt the use of BIM in centrally procured public construction projects, the awareness of BIM and its incorporation into the industry have increased. Following the release of Australia’s own BIM initiative report in June last year, it is likely that Australia will follow a similar trend.
To ensure that the benefits of BIM’s collaborative approach are not wasted, the parties to a project need first to agree on the rights and obligations of all BIM stakeholders to ensure efficiency and to avoid disputes.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.