BIM – be contract ready
What is BIM?:
Building Information Modelling (‘BIM’) is the process of creating, sharing and managing digital information during and after a construction project. This co-ordinated method of working should reduce cost, give easy access to project information and is intended to improve communication, design and risk management.
What are the BIM ‘maturity’ levels?:
Level 0: paper-based 2D CAD drawings.
Level 1: 2D/3D drawings on CAD systems and using a standardised approach to communicate design intent across all of the project team.
Level 2: All data including costing and programming, presented in a standardised format, are shared and co-ordinated through BIM databases across the project team.
Level 3: All data, presented in a standardised format, will be integrated into a web-based system that can be accessed and contributed to by all of the project team.
BIM Level 2 should now be achieved on all public sector projects. BIM Level 3 (introduced in phases) should be adopted by 2017 with an end goal of 2025.
The 2016 Budget reported that BIM Level 3 will: “save owners of built assets billions of pounds a year in unnecessary costs, and maintain the UK’s global leadership in digital construction” (para 7.49).
The National Building Specification National BIM Report 2015  reported that: “…practices reaching Level 2 has grown to 59%, up from 51%. This demonstrates an increase in the number ready to meet the Government’s requirements. Level 3 remains a topic of occasionally intense discussion…Many take the view that it’s impossible to achieve, given the current tools and standards that we currently have…” (page 10-11).
Industry commentators accept that BIM is a positive step, but implementation is very slow.
BIM terms in the contract
There are currently a handful of BIM protocols and contract amendments available:
- The Joint Contracts Tribunal (JCT) has released a practice note for its standard forms of contract . The new JCT 2016 suite is expected to publish BIM amendments. It is available in the public sector supplement.
- The Construction Industry Council has released a BIM protocol , which the NEC3 contract incorporates.
- The CIOB Time and Cost Management contract contains a BIM clause.
- The Royal Institute of British Architects introduced a ‘Plan of Work’ online tool to help individuals organise projects .
- The AEC UK has also introduced protocols tailored for use with specific software packages .
- The Government has a Government Soft Landings Policy which applies to public sector projects 7 and has now launched a new BIM Level 2 website .
- There is also the PAS 1192-2 which specifies required standards .
Below are key factors that you should consider when preparing tender/contract and appointment documents:
- Employer Requirements: On a BIM project there should be “Employer’s Information Requirements” (EIR) . Centrally funded government departments are now required to provide EIRs with all contracts.
- Sharing data risks: Contracting parties should consider who assumes risk for each element and for how long? If one element is changed, or an error is made, that has an impact on other contributor’s work, so who is responsible? Bespoke contract wording should be prepared to cover these risks, or at the very least incorporate a BIM protocol. Care should be taken to ensure that there is no conflict in terms – consider what terms take precedence.
- Insurance: Enquire whether existing Professional Indemnity Insurance (PII) policies cover BIM working methods (at all levels). Consider single project insurance.
- Who has design responsibility? The UK Government envisages introducing a ‘BIM Co-ordinator/BIM Information Manager/Model Manager’ role to co-ordinate working methods and data format. In the contract, define the roles and its responsibilities e.g. what are the appointment terms and who pays for it?
- Intellectual Property e.g. trademarks, copyright, patents etc.: Who owns the data and the final model? Can the data be reused? Enter into a non-exclusive licence for the use of intellectual property and consider giving an indemnity in the event of infringement. Also, ensure collateral warranties extend to cover BIM.
- Confidentiality: Include a confidentiality clause and consider the risk of cyber-crime; with web based BIM networks these will be susceptible.
- Who pays for mistakes?: Should the Employer bear the cost (and risk) or should the project team share the risk; consider creating a contingency fund.
- International projects/transitional period: Contracting parties may cross borders, or not be BIM ready. Consider the differing capability levels.
- Reasonable skill and care: Watch out for bespoke contracts including a higher standard than what is typically required and notify your PII insurer.
Industry professionals need to have the technology and know-how to be BIM ready – consider all contractual and practical implications of a BIM project in order to have the best protections in place.
For more information, contact Michelle Dixon, Associate Solicitor specialising in construction law at Humphries Kirk LLP.
T: 01202 725400 | E: firstname.lastname@example.org
- https://www.gov.uk/government/publications/budget-2016- documents/budget-2016
- https://www.thenbs.com/knowledge/nbs-national- bim-report- 2015
- https://shop.bsigroup.com/forms/PASs/PAS-1192- 2/