Insights

In brief - Need for protocols, definitions and standard form contracts for implementation of BIM

Australia would benefit if specific protocols, universal definitions and standard form contracts were developed for the implementation of BIM, so that inconsistencies do not develop across jurisdictions.

BIM already used in major Australian projects

The private sector has continued to embrace and drive the use of Building Information Modelling (BIM) in Australia. BIMs have been used on recent high-profile projects such as Northwest Rail Link (NSW), Adelaide Oval (SA) and Cape Lambert Port B (WA) to name a few.

Dedicated BIM departments now exist in most major contractor and consultancy firms in Australia which rival those of any international counterparts. Late last year, the Build Sydney Live competition saw participants from Australia, Europe, Asia and the US design a hypothetical Sydney Convention and Exhibition Centre in 48 hours. BIM is here to stay.

Greater collaboration risks blurred lines of responsibility

The great benefit of BIM is that it encourages greater collaboration between all stakeholders, resulting in time and cost efficiencies. However, it is this very collaboration that risks blurring the lines of responsibility between the various consultants, contractors and subcontractors, which raises the greatest concerns legally for how a party's rights and responsibilities are managed when participating in a BIM.

BIM's use in the market relies on certainty on protocols

While BIM is being widely used in Australia, its use in the market will not be assured until such time as there is greater certainty as to the protocols around how BIMs are implemented and how stakeholders' rights are managed, either in an existing or a new legal framework.

Arguably, that certainty cannot come until protocols spanning jurisdictions are put in place. Some argue that this requires the government to take a formal or mandating position on the use of BIM.

Until there is certainty, parties should carefully consider their rights and responsibilities

There are a number of issues parties involved in a BIM project need to consider. Their impact on the rights and responsibilities of a consultant, contractor or subcontractor can greatly vary depending on how the project, and legal framework, are structured.

Agreed protocols and clear communication in submission of design information

A core element of BIM is the earlier introduction of a contractor, and other construction phase stakeholders, to the design. To avoid having unnecessary risk allocated to a party which is not best placed to bear it, parties should ensure that:

  • before commencement of the project, standard terms and protocols for the submission of design information into the BIM are agreed.
  • they openly communicate their assumptions regarding their own design input (i.e. if a specific installation sequence is required) and also their assumptions regarding their interpretation of another stakeholder's design input. Do not assume that a builder will be aware of design nuances regarding installation sequences and, likewise, it should not be assumed that a designer is aware of the practical realities regularly confronted during a build.
  • before providing warranties, each party is well versed in all design interfaces, so that they have an accurate picture of where their own design responsibility starts and finishes.
  • they are clear as to what constitutes "fitness for purpose" when submitting design information. Are early designs only for helping formulate the BIM and not specifically tailored to address issues with specific subcontractors, i.e. mechanical, electrical or plumbing considerations?
  • each party clearly states to what extent the design they have submitted is reliant upon the design of another party.

Law unclear on incomplete design information

As there has been very little litigation regarding building information models, it remains to be seen what would happen in circumstances where a party submits incomplete design information.

  • If that incomplete design raised a series of clash detections in other aspects of the project, is the designer liable for those if it is ultimately rectified?
  • Could a principal contractor seek damages for economic loss where an incomplete design is paid for in full and causes loss of opportunity or consequential loss through re-design or lost time and cost inefficiencies?
  • Does the designer owe a duty of care to subcontractors where that design information is incorrect or incomplete, in circumstances where that designer is likely to have met and discussed the design and project with those subcontractors as a part of early contractor involvement on the project?
  • Is it misleading and deceptive for a designer, aware of the likely ramifications of providing incorrect or incomplete design information, to provide that design to other participants in a BIM?

Are indemnities broader for a designer involved in a BIM?

As a designer, complicated issues regarding indemnities arise when you participate in a BIM. Where the provision of a BIM is a contract deliverable for a designer (and the model prepared is to be used to manage the asset following completion of the project), there are questions regarding how long a designer should remain liable for the information contained in that BIM and how best to manage the risk associated with a designer relinquishing control of a BIM to a facilities management entity and no longer having control of the management of the BIM or any amendments made to it.

Is it possible to protect your intellectual property in the long term?

The protection of valuable intellectual property remains the greatest concern for most BIM participants. While a simple and practical solution is the use of licences which specifically define the scope of permitted uses for information incorporated into the BIM, further difficulties can arise when a BIM is prepared by the developer or principal for the purposes of identifying its requirements.

A contractor is then appointed to undertake the project and introduces its own design team. Are the contractor's design consultants licensed to use the BIM?

If the contractor passes that BIM on to its own designers without the proper authorisation or licence, is the contractor not then exposed to a claim for breach of intellectual property rights?

Another problem could arise if the ultimate asset owner wants ownership of the information contained in a BIM for the ongoing management of the asset. As noted above, once management of the BIM is relinquished, it would be hard to police and indeed prove subsequent dissemination of that information following completion of the project.

Consider day-to-day management of the BIM

Stakeholders should be vigilant in their consideration of the assumption of responsibilities concerning the day-to-day management of the BIM, especially as a party's role on the project comes to an end. For example, where a number of consultants and contractors have collaborated to produce a BIM and some of those consultants and contractors are not novated to the principal contractor at a later stage in the project, what happens to the responsibilities of those who exit the project at that point?

Secondly, should parties be entitled to rely on the information and advice of the appointed BIM manager? To what extent should a consultant, contractor or subcontractor be aware, or ought to be aware, of the impact of specific design changes?

If parties use existing contractual frameworks and simply annex schedules seeking to manage the development and implementation of a BIM, there is a risk that contractors and consultants will ultimately bear risks that they would not normally and are possibly not insured for.

Are you covered for contractual risks?

As noted above, participation in a BIM can often expose a party to a project to new contractual risks. In some circumstances it may be that parties are not properly insured for those risks.

In the UK, where the use of BIM is mandated on all government projects over £5 million, the government undertook a consultation process with various stakeholders in the insurance industry before the introduction of that mandate as to what possible impact BIM would have on a party's insurance requirements.

Following that consultation process in the UK, it was determined that "improved information quality and design co-ordination that can be secured using Building Information Models provides further incentive for insurers to support their clients in the design and construction markets." (Quote from BIM Task Group. In addition, see UK Construction Industry Council, Best Practice Guide for Professional Indemnity Insurance When Using Building Information Models CIC/BIM INS, first edition 2013.)

Check your professional indemnity insurance

Before contributing to a BIM as part of a project, you should consider the following with respect to your insurance:

  • Do you have sufficient coverage under your current PI policy? This will depend on your role on the project, and whether you are coordinating the conglomeration of design material or just contributing.
  • Does your current PI policy include any exclusions which might affect your coverage?

Tailor confidentiality provisions to secure information

While confidentiality clauses are included in construction contracts as a matter of course, these standard form clauses most commonly govern the dissemination of information to third parties. Given the ease with which information can be shared on an electronic platform using a BIM, parties should carefully consider specifically tailoring confidentiality provisions to ensure greater security of information.

Productivity commission recommends BIM for government clients

The Australian government has recently acknowledged the benefits of BIM in the Productivity Commission Inquiry Report on Public Infrastructure published in May 2014. That report recognised not only the potential benefits of BIM for the design and construct phase of a project, but also the value of high-quality information in a BIM for utilisation across the entire life of an asset.

The productivity commission has recommended that:

For complex infrastructure projects, government clients should provide concept designs using Building Information Modelling (BIM) to help lower bid costs, and require tender designs to be submitted using BIM to reduce overall costs. To facilitate the consistent use of BIM by public sector procurers, Australian, State and Territory Governments should:

• facilitate the development of a common set of standards and protocols in close consultation with industry, including private sector bodies that undertake similar types of procurement.

• include in their procurement guidelines detailed advice to agencies on the efficient use of BIM.

 

(See Productivity Commission Inquiry Report, Volume 2, Public Infrastructure No. 71, 27 May 2014, Recommendation 12.5, p. 470.)

Private sector left without specific protocols, definitions and standard form contracts

While a helpful endorsement of the benefits of BIM, this is still a long way from a mandate and leaves the private sector to continue utilising BIM in a vacuum with no specific protocols for the implementation of BIM, no universal definitions and no standard form contracts.

BIM takes root in construction, infrastructure and mining industries

There are a number of different organisations in Australia which are formulating solutions to facilitate the efficient and most effective implementation of BIM into the construction, infrastructure and mining industries in Australia through the development of protocols and standardised definitions and contracts.

In the absence of this standardisation, either by the private sector or through legislation or a government mandate, there is a risk that parties will continue to develop bespoke commercial arrangements and legal frameworks which will potentially result in:

  • BIM becoming simply another weapon in negotiations when assigning risk on large projects
  • inconsistencies as to definitions and protocols developing across jurisdictions

Public or private sector will eventually establish a BIM protocol

The most exciting development in BIM recently is how it is now being used, not only as a tool for designers, but also as a critical aid in site safety, project management and facilities management.

Recent data from the US reporting on the success of BIM shows that in a review of 32 major projects in the US in which BIM was adopted, the technology led to a 7% reduction in project time, 10% saving of the contract value through clash detection, 40% elimination of unbudgeted change and an 80% reduction in the time taken to generate a cost estimate. (See Productivity Commission Inquiry Report, Volume 2, Public Infrastructure No. 71, 27 May 2014, Annexure E, Building information modelling, p. 693.)

As the use of BIM takes root in even wider aspects of construction, infrastructure and mining, it is surely only a matter of time before either the private or public sector formulates a protocol to take fuller advantage of the cost and time efficiencies which the US is already enjoying.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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