A recent BIM Alliance report highlighted the legal and contractual barriers to BIM. Chris Kirby-Turner and Chris Whittington examine how contract law currently handles BIM and collaboration.
Collaboration seems to be prevalent in construction industry conversations at present. Dame Judith Hackitt’s published reports on Grenfell Tower are littered with phrases such as “lack of coherent collaborative working” and “fragmentation in the flow of information”, while Carillion’s demise brought references to an adversarial and flawed procurement process.
The need for better management of supply chain relationships and information has been cast into the spotlight again.
Will we see more collaborative working in future? If so, what commercial steps can help ensure success? Since Sir Michael Latham’s 1994 report, efforts have been made to bring parties closer to the elusive goal of “collaboration”, first through partnering, now through BIM. But fragmentation and disagreement remain.
Key legal concerns on BIM and collaboration
- Information access: The only BIM issue so far to reach a court of law in England (Trant Engineering v Mott MacDonald). It makes sense to have absolute contractual clarity on who should access information and when access can be restricted.
- Amendments: Amendments should be clear and there needs to be a clear understanding of their impact on other aspects of the contract.
- Conflicts: There may be conflicts in wording of documentation. It’s important to be clear on which document takes precedence. Careful amendments should ensure clarity in a dispute.
- Grasp the nettle: The spirit of collaborative working must be balanced against ensuring you do not leave yourself open to a claim if conflicts occur.
- Insurance: Cover needs to be correct. There is merit in exploring IPI if the parties think it suitable.
- Understanding: It’s crucial to understand rights and obligations. Contracts must increasingly be utilised as a daily management tool.
A recent UK BIM Alliance report, Overcoming the Legal and Contractual Barriers of BIM, was researched and written by May Winfield, senior legal counsel at ENGIE Services, and Sarah Rock, senior associate at Gowling WLG. They identify several challenges, including an evolving documentation framework, varying standards of information definition, and the need for better understanding of BIM by the legal profession.
Winfield and Rock say: “As BIM Level 2 grows in maturity and becomes increasingly a contractual requirement, this report reflects upon the need for better understanding by lawyers, whether through self-driven learning or coming together.”
Most contracts make only light reference to BIM in their documentation, though most do now at least make reference to it. NEC4 arguably goes the furthest.
NEC3 was known for its use of plain English and the phrase “mutual trust and cooperation”. The courts took the phrase’s whereabouts in the contract to give it a very broad meaning. The phrase is now NEC4’s opening clause and there has been some debate as to whether the move reduces its importance.
Additionally, NEC4 now has an entire option within its framework dedicated to BIM. Option X10 contains guidance on ownership of the model (X10.6). It identifies liability in the event of a fault (X10.7). It also refers to the timescales and process for implementation and acceptance of the “Execution Plan”(X10.4).
NEC4 refers to BIM as “Information Modelling”, along with a number of other slight adjustments to accepted terms. The BIM Alliance report notes much support for NEC’s use of the BIM terminology, something other contracts have failed to achieve.
But it also notes that standard contracts require reference to the CIC BIM Protocol, written in 2013. Since this was written, much has changed in the law and technology.
Careful attention is therefore needed to ensure the contract and associated documents work together. It is rumoured that a new edition will be published soon, but there is little clarity on when that “soon” might be.
Add to this the need to be mindful of the various standards – including PAS 1192-1 to 6 and the planned ISO 19650. There is clear potential for confusion, and this is likely to be a significant growth area for disputes going forward.
There remain a number of legal concerns around BIM and collaboration (see box), though it appears contracts are moving in the right direction. The main forms all now refer to BIM. Those such as NEC4 and some others go some distance to incorporating the language of collaboration into the contract itself.
Recent events might also lead to continued recognition of the need to reduce fragmentation. One route might be through a pro-actively managed contract. However, the contracts – and many lawyers – appear to be playing catch-up in an evolving world.
The contract is just one aspect of a required change in culture. As management writer Peter Drucker once observed: “Culture eats strategy for breakfast.” Without cultural change, strategy can rarely be achieved.
Chris Kirby-Turner is a partner and Chris Whittington a consultant at law firm Thomson Snell & Passmore
