Analysis

BIM contracts are leaving liability gaps: a ticking time bomb?

11 January 2016 | By May Winfield

May Winfield, senior associate at law firm Kennedys, says that the trend to adopt (or even amend) a BIM protocol and hope for the best is leaving major gaps and inconsistencies in parties’ understanding of their obligations and entitlements in BIM projects.

Two thirds of respondents to law firm Pinsent Masons’ 2014 BIM survey felt that the existing forms of contract used in the industry, and the approaches taken to contracting, are not fit for purpose in a BIM-enabled world. While there are various BIM documents emerging in the UK, we have still yet to achieve accepted default BIM contract documents or standards.

The NBS National BIM Survey 2014 confirmed this continued lack of standard practice, finding that only 19% of respondents use the Construction Industry Council BIM Protocol, while the BS 1192:2007 and PAS 1192:2-2013 standards were used by 36% and 27% respectively.

The NBS National Construction Contracts and Law Survey 2015 again confirmed that there has been little progress in this area, with 33% of respondents saying that they had worked on a project that referred to BIM in the contract, an increase of only 10% recorded in the last survey in 2012, despite the fact that half of respondents had worked on a public sector project in the last 12 months. A mere 14% of respondents confirmed that BIM was fully integrated into their contracts.

Conversely, more than half of respondents to the 2015 survey accepted that BIM models were contractually binding, despite the lack of express terms dealing with them.

This mismatch between perceptions and contractual obligations self-evidently gives rise to a real risk of misunderstandings and unnecessary disputes during the use of BIM in a project, particularly given the lack of standardised practices, case law and established principles during the continued development of BIM in the industry.

While BIM case law or disputes have yet to be apparent in a public forum, during our investigations and work in providing specialist BIM legal advice, we have already seen potential inconsistencies, confusion and gaps in liability due to a lack of express terms dealing with the process and risk allocation of BIM.

Some examples of the real, and serious, issues that can arise include:

  • “We want the models” — a contractor/employer requests copies of models but the contract/appointment is silent about models and BIM;
  • “The models belong to us” — an appointment sets out a copyright licence for design, but is silent as to ownership or licensing of the BIM models;
  • “We did not realise it looked different on our software” — Interoperability issues only discovered at a late stage;
  • “That’s not what we thought it meant” = different understandings between the parties, for example of the scope of modelling, the meaning of “Level 2 BIM” and the extent and/or method of clash detection;
  • “We can’t do what we have warranted” = Inability to fully meet a strict obligation to comply with specified standards (including PAS 1192) for a particular project, despite reasonable endeavours to do so.

In simple terms, if the contract is silent about the BIM process, parties will inevitably have a different understanding of what their obligations are, and what they are entitled to. Significant time and costs could then be expended to establish an accepted position between the parties.

Conversely, a clear contractual framework of BIM-supportive terms reduces such avoidable time and costs, while also encouraging certainty, efficiency, and avoiding gaps in liability. A clear framework would provide a clear understanding of parties’ roles and risk allocation, culminating in minimising misunderstandings and unnecessary delays caused by disputes (which, of course, BIM and its collaborative nature is intended to avoid anyway).

More from May Winfield

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The BIM protocol in widest use, the CIC BIM Protocol, is generally accepted as a step in the right direction, but it does not provide the one-stop solution for BIM contractual issues and is not without its critics1. Nonetheless, there presently appears to be no other comprehensive UK standard form BIM protocol in the UK, and so, for the foreseeable future it is likely that the CIC BIM Protocol will remain the most widely used BIM protocol in the UK2.

The CIC BIM Protocol is a useful and valuable starting point, but arguably requires amendment to form the comprehensive BIM element of a contract. From our experience to date, this seems to be the route being taken by the industry.

When faced with a contract or appointment for a BIM-enabled project, it is important to consider whether the contractual documents (including any appended BIM protocol, whether a version of the CIC BIM Protocol or otherwise) deals with the main issues likely to arise in a BIM project.

These may vary from project to project, but in broad terms, will encompass issues of process and data, interoperability, standardisation, copyright and other intellectual property matters, risk allocation, and collaborative processes.

As we progress towards BIM Level 3, as set out in the Digital Built Britain report, any BIM-specific issues arising from the report’s proposed performance-based and data-enabled contracting models, if applied, will also need to be considered and clarified. 

May Winfield is a construction solicitor with a particular interest in BIM, and can be contacted on [email protected].

Disclaimer: This article is for information only and does not constitute legal advice and readers should obtain independent legal advice on any issues.

1 Rich, Moore and Klein, Construction Law, July 2014

2 The NEC Guidelines endorse the CIC BIM Protocol, yet also acknowledges the risk of contradictory terms (to give one example, a discrepancy occurs in the definition of “Material)

This mismatch between perceptions and contractual obligations self-evidently gives rise to a real risk of misunderstandings and unnecessary disputes during the use of BIM in a project, particularly given the lack of standardised practices, case law and established principles.– May Winfield, Kennedys