The Government's Construction Strategy was published on 31 May 2011 and mandates the use of Building Information Modelling (BIM) on public projects. The intention is to implement BIM by 2016. BIM produces a 3D model of the building and associated information, such as: detailed dimensions, component-placement, material specifications, carbon content and maintenance requirements. Software is used to build up a virtual model that everyone working on the project can see and use.  It can be used to model the method of constructing the building and also build in cost data and drive out waste from the process.

The Strategy Paper indicated that adoption of BIM in projects should not require much change to construction contracts as standard BIM protocols should be used which set out the requirements for project delivery and outputs. 

There generally seems to be a growing interest in BIM in the construction industry and one area in particular that is receiving an increasing level of attention is the legal issues relating to adopting BIM in a project as many in the industry did not agree that only minor contract amendments would be required.

Legal issues

The BIM task group website indicates that the working group is “currently directing the drafting of scopes, protocols and contract amendments” and that a workstream is in place to give clarification on issues relating to liability, insurance, copyright and intellectual property. It would seem that there has perhaps been an unspoken acknowledgement that the legal issues might not be quite as straightforward as simply making minor contract amendments.

Some of the issues being considered by the task group working on draft BIM protocol, contract amendments and scope of services include:
copyright and intellectual property
information exchange
roles and responsibilities of the different parties involved in a BIM project, and
authorised users and uses of BIM information

Contractual framework for BIM

Given the scope of the issues outlined above, there is an argument for drafting new forms of contracts to implement BIM to cover the changes to the relationships affected by the BIM method of working. The alternative argument is to include the legal issues into a “BIM Protocol” which would be a set of amendments to the main contract which would then be incorporated into various agreements for a project to ensure the equivalent rights and obligations flow through. This seems to be the more popular approach. 

However, there is still a debate around where this Protocol would sit in terms of priority: some suggest it would be included in the Employer’s Requirements (JCT contract) or Works Information (NEC contract) while others consider that it should be a standalone amendment and take priority over other documents. Given the nature of the information that might be included in the BIM protocol indicated above, it’s easy to see that the terms of the Protocol could conflict with the contract conditions and the second option therefore seems to be the more appropriate one.

Whilst there is talk of “standard” protocols being incorporated, as with any contract, it will be important to ensure the documents accurately reflect the specifics of the particular project with each party fully understanding its role and responsibilities. 

Conclusion

The BIM Task Group sees the use of BIM as going beyond the technology and encouraging “collaborative behaviours to unlock more efficient ways of working“. This is where the real challenge will lie: achieving greater collaboration, early supply chain involvement and whole life costing have long been aims of the construction industry, but have had limited success. The introduction of BIM and any Protocol or contract amendments are not a silver bullet to achieve this: true collaboration requires a real commitment and effort on the part of all of those involved in the project, including the client, to make it work.