Impact of BIM on project contracts
01 November 2014
STUART JORDAN* discusses the scope of building information modelling (BIM) and its impact on the contracting structure.
Most articles about BIM, however, are written by people who are selling it. There’s nothing wrong with that. Lawyers write columns for the same reason. Nevertheless, most articles about BIM tend to concentrate on the hoped-for advantages in the build and operational phases. Yes – it’s another ‘pay-more-now-and-save-a-lot-more-later’ deal. Coverage of the subject is mostly not about the impact of BIM on the contracting structure.BUILDING information modelling (BIM) is spreading across the Gulf and it is surely here to stay; governments are ordering or encouraging the use of BIM. Dubai Municipality last year mandated its use.
What’s surprising about BIM is the divided reaction to it. A lot of that reaction – good and bad – is about its effect on legal relationships in the project team. Some see BIM as a tool to change those relationships. Others see danger in moving from a contractual set-up between designers, contractors and owners which is understood and generally clear. We should take a balanced look both at the claims for BIM and the concerns.
A third section of the industry has not taken any notice of it. A senior representative of Dubai Municipality last year estimated that only 10 per cent of the industry is fully aware of the full scope of BIM.
A quick refresher about BIM: the official definitions are too confusing for the non-technicals to look at. It is essentially smarter software than was previously available. It creates a platform in which each element of the design can (to varying extents) recognise and coordinate with the other elements. All designers will contribute their design information and the platform will integrate it. Design clashes, inefficiencies and missing pieces are identified and flagged by the system immediately. Additionally, the software is capable of generating cost and programme/schedule information; it can direct decisions on sequencing of activities, long lead ordering and general buildability. Newer variations can do the same for operation and management of the built asset – flag problems and inefficiencies, and provide information on pricing and organising these tasks.
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Jordan ... BIM issues. |
On that summary, BIM looks like good news and it is getting better. There are, however, different levels to BIM, which unlock different advantages. You get what you pay for, and what the project participants can handle in terms of their systems. There is no official definition of the various levels but we can summarise four reasonably well-recognised levels as follows:
1. Design in 2D, submitted on paper. This is the most basic current practice – not really BIM at all;
2. Design in 2D or 3D submitted into a common management tool;
3. Design in 3D carrying data, submitted by designers independently into a “managed 3D environment”; and
4. A fully-collaborative web-based single model.
The claimed benefits of BIM really accrue at Levels Two and Three, when design carries data and the model can coordinate, troubleshoot and produce cost and programme/schedule information. These are also the levels at which the main concerns arise in relation to contractual responsibilities. We can look at both.
THE SUPPORTERS
The technical claims for the benefits of BIM are easy to see. I am not able to judge them in technical terms but there is now a lot of real-world evidence about the advantages in terms of savings in time and cost through the building phase. We’ll soon start seeing a lot more data about the operational phase as well.
More interesting to me are the wider claims from supporters about how BIM is changing attitudes towards a collaborative approach. This is the elusive ‘partnering’ agenda and the proponents of partnering are trying hard to co-opt BIM as the technical embodiment of their philosophy. This includes the claim that BIM was actually created in order to support partnering, as opposed to it just being a really useful and practical technological advance in its own right.
Whatever drove the development of BIM, some partnering enthusiasts consider it mostly to be a tool of true collaboration including the sharing of risk. The irony of this is that BIM of course can detect and identify authorship of defective design immediately. BIM is very good at finding and allocating individual fault. That doesn’t disqualify it as collaborative. Construction is a deeply collaborative exercise. I guess it depends on one’s definition of collaboration.
It is true that the proper use of BIM, in particular at either of the higher levels, is going to require certain good practices. The best of them is surely the giving of sufficient time in the preconstruction phase to development of design. Alongside that, cost plans and programme/schedules can be developed in greater detail; value engineering, sequencing, key package market testing and a lot of other good things can be done, which will eliminate certain risks, take our provisional sums and make the build phase run more smoothly. Crucially, this approach requires the design team and the contractor to be involved from earlier stages than might otherwise be done.
None of this is new. It simply follows the old advice: “Write the script for the play before you go onstage”. More progressive project teams across the Gulf have been moving already towards early designer and early contractor involvement, negotiated tenders and two-stage tendering, involving the formalised participation of preferred contractors in these pre-construction tasks. BIM of course is built to support this approach but it didn’t create it. We should also remember that it is generally more expensive upfront to allow longer time for pre-construction tasks and to have full early engagement from designers and contractors. The hard cost is a lot more than the BIM software.
THE SCEPTICS
Some of the concerns about BIM, of course, mirror some of the claims from its supporters. The first is the partnering agenda. The main opposition to partnering is the risk of removing the clear lines of legal responsibility which we work hard to create between designers, contractors and managers of works. This concern is naturally amplified when BIM supporters talk about how the future is all about collaboration and shared risk.
Going one step further, some sceptics have argued that the collaborative approach is a cloak for old-fashioned risk dumping onto main contractors and subcontractors. The theory is that the contractors will be presented with the BIM model, loaded with the design and will be required “collaboratively” to adopt responsibility for this design (each piece and the whole) and/or for the model itself – especially the ability of the model to detect design clash and inefficiencies.
Other, more specific, legal worries are:
• This usurps the role of the lead designer;
• It affects the duties to review and to warn of deficiencies observed in others’ designs; and
• A designer working off someone else’s defective design
will become responsible for further errors.
The answer, of course, is to make sure it doesn’t work that way, and this is achieved through proper and careful integration of the BIM process into the contractual set-up. Various BIM protocols have been drawn up, for inclusion in construction contracts and design appointments. They should work with existing lines of responsibility and contracts should clarify the status of the BIM within the wider contract procedures. Just as examples, it should be clear that:
• The BIM model is separate from the design loaded onto it. Separate consultants (if not the seller) are responsible for the performance of the BIM model itself – the purchased system. If it doesn’t work as it should or is not managed properly, that is the responsibility of the person who produced it or managed it. This is not the fault of the design team or contractor.
• The BIM manager is, therefore, not the lead designer – or doesn’t have to be. Nor does the BIM manager set the design brief. His job is to facilitate the input of design from the team and to make sure the platform works as it should.
• The agreed position on ownership of design information and the terms of licensing of it for use by others (not just the project owner but other designers and managers working with it) are preserved.
• Basic professional standards as to competent design – and review of the connected design from other designers – are expressed.
BIM protocols generally express themselves as superseding other contract terms, in the case of conflict. It isn’t a good idea to leave it at that. Care needs to be taken to think about the processes which are taken over by the BIM (design submission, review, response, etc) and make proper room for the protocol in the contract.
Both the wider claims for BIM and the worries about it are overblown. It is the future.
*Stuart Jordan is partner and co-head construction for the international law firm King & Wood Mallesons SJ Berwin (KWM SJB). Based largely in Dubai, UAE, he specialises in engineering and construction matters, cross border, both front end and disputes.
The firm recently entered into an exclusive association with the Law Office of Majed Almarshad to open an office in Riyadh, marking the first time that a global law firm headquartered in Asia has established a permanent presence in Saudi Arabia.
