BIM in the dock

If left untackled, inconsistencies in the ways that BIM is defined in legal contracts could pave the way to disputes, warns construction solicitor May Winfield

There’s a common adage about parts of BIM documentation, this begs want to be the expensive test court cases contracts: the best place for the question: what is everyone else using to establish such legal principles. them is the bottom drawer. or relying on? Indeed, as many readers will be aware, That’s all well and good in the I recall reading in the NBS National we recently saw the first ‘BIM’ case in honeymoon period, when everyone’s get- BIM Report that 93% of respondents Trant Engineering v Mott Macdonald. ting along, but as any lawyer will tell you, agreed with the statement that “adopting Without rehashing the facts of the case, I the minute a dispute arises, you can be BIM requires changes in workflow, prac- note that both parties would have sure that the drawers will be flung open tices and procedures”; however, such incurred considerable legal fees, and and those contracts changes are still great costs to their commercial relationwill start getting a lot piecemeal and inter- ship, in pursuing this case all the way to of attention. The simple fact is About the author mittent in many areas, possibly reflecthe Supreme Court. This formal dispute likely could have that while everyone May Winfield is tive of the resistance been partly or wholly avoided had the agrees that collabora- a senior solicitor, of our industry to sig- parties had clear contract terms, setting tion is essential to most recently at nificant change. out their respective rights and duties as our industry, both collaboration and Carillion and author of the Society of So, mindset is certainly one of the bigregards access to the common data environment (CDE), rather than needing to good nature can go Construction gest hurdles to over- seek a court’s interpretation of their out of the window Law paper, come in BIM adop- implied or common law rights, and all when parties (and/or Building tion; but I would the considerable costs that implies. their insurers) are Information Modelling: The Legal argue that the right Looking briefly at what a BIMseeking to establish liability and recover Frontier - Overcoming Legal and Contractual Obstacles [tinyurl.com/BIMLegal]. You can also find May on Twitter: contract terms (which clarify and protect supportive contract framework may look like, it would normally need to cover losses and damages. @Buildlaw_Arttea parties’ BIM posi- areas of:

The BIM process is, tions) can be instruby its nature, collabo- mental in effecting • Process, data and interoperability rative. BIM-supportive contract terms, this change by promoting the right • Standardisation of processes and meanwhile, assist in providing certainty behaviours; for example, through obliged documents and efficiency, so that parties have a clear compliance with collaborative processes • Copyright and intellectual property understanding of their respective roles and open information sharing. • Risk allocation and responsibilities from the outset. • Collaboration (because BIM cannot

However, there remain significant Clear contracts fully work without collaboration) inconsistencies and differing views on The importance of clear contract terms the treatment of BIM within contracts. that set out parties’ positions is There is no doubt that BIM is an important This is the topic of a research project I am increased by the lack of established com- and exciting development in our industry conducting with fellow con- and the catalyst for struction lawyer Sarah Rock of Gowling WLG, on behalf of the UK BIM ‘‘ The minute a dispute arises, you can be sure that increased use of other innovations, such as Augmented Reality (AR), Virtual Reality Alliance. [Readers are the drawers will be flung open and those (VR), sensors and drones. encouraged to complete the survey here: tinyurl.com/ contracts will start getting a lot of attention However, as with any change in ways of working, UKBA-survey]. According to the 2017 NBS National BIM Report, only 25% of mon law rights and duties, and legally ’’ BIM brings with it new legal issues and risks that need to be clarified and dealt with in conrespondents reported using the CIC BIM established meanings of BIM terms. It tract documents and through open disProtocol and only 38% reported using will be some years until we have a body cussion, in order to avoid unnecessary PAS1192-2: 2013. Given that a BIM of case law dealing with the common disputes and misunderstandings. This Protocol and the PAS1192 suite of stand- BIM issues and disputes, and I doubt will enable BIM to be utilised to its maxiards are widely accepted to be integral that any of those reading this would mum beneficial effect.