Build Magazine September 2015

Build Magazine 35 Inside the Industry The US continues to lead the way in terms of BIM technology adoption and, together with several of the Scandinavian countries and Singapore, presents a glimpse into the future. Undoubtedly they provide a useful reference point for further developing and establishing the necessary framework in the UK as recognised by the memorandum of agreement en- tered into between the UK’s buildingSMART alliance and the National Institute of BUILDING SCIENCES (Washington DC). The agreement provides a royalty free licence to reproduce and use the National BIM Standard United-States (NBIMS-US) to develop a national BIMstandard with the principles of interoperability. The legal implications from using BIM The legal profession in both the UK and abroad is on a learning curve with the construction industry when it comes to understanding the impact of BIM on legal relationships. In Digitally Built Britain, the Government refers to the opportunity for “the establishment of a new contractual framework for projects which have been procured with BIM to en- sure consistency, avoid confusion and encourage, open, collaborative working.” Stakeholders must consider how using BIM will al- ter their contractual documents. For example, how will a principal’s standard form contract address the novel constantly evolving roles played by a BIM manager or the like on a project? Or, on completion of a project, who owns what in BIM? Professional indemnity insurance products may also need to evolve to account for the innovations in the way design takes place through BIM. To date legal solutions have varied project-to-project but generally have centred on the creation and use of a BIM Protocol (such as the standard form Construction Industry Council Protocol in the UK and the AIA and ConsensusDocs protocols in the US). However, it may be necessary to manage liability and responsibility more compre- hensively than by way of a perhaps overly simplistic “order of precedence” clause (for example, in the event of a conflict between the contract and the BIM protocol, the BIM protocol will prevail). It is likely that in the future the “BIM provisions” will be fully integrated and aligned with the existing contractual framework of legal documents. Changing dynamics The existing legal frameworks in the construction industry have remained largely unchanged for decades, and do not address the dynamics of e-processes and allied digital innovations that are becoming more common in the industry. Projects using BIM generally focus more on collaboration in early stages, and may be more suited to alliancing contractual arrangements. The ability to de-risk projects through great- er efficiency in the design-build-manage- own process-building lifecycle is relatively short compared to the operations and asset management phase of a facility’s life. Another key issue is the impact of risk allo- cation and attributing responsibility for BIM management. Parties will need to consider: a) The use of apportionment of liability schemes so as to effectively allocate BIM risk to deal with the implications of multiple contributors using the program (particularly if different design teams are involved at varying stages of the project). b) The “knock on” effects that may be caused by errors made in BIM, including the delay and costs implications. Allocating risk and pinpointing fault will undoubt- edly cause difficulties unless systems are properly managed. Parties may wish to incorporate “knock for knock” indemnities which remove the need to establish fault. c) As is commonly found in the US, addressing potential risk by inserting broad dis- claimers in respect to the potential failures of electronic programs. d) The definition of quality standards may require amendments to address the standard- isation of BIM guidelines. Conclusion The increased use of more sophisticated and complex BIM products is inevitable and, as a result, stakeholders should be prepared to consider the associated additional legal issues and ramifications, preferably in the earlier stages of developments. A failure to utilise requisite project management risk allocation and insurance developments could result in many of the advantages that adoption provides being cancelled out.