BIM has been in use in the US for a number years, with the leading standard contract documents published by the American Institute of Architects (AIA) and ConsensusDocs, a coalition of 40 construction-related associations.
The AIA documents in combination form a BIM Protocol, and set out the procedure and respective responsibilities of the parties. However, not all of the AIA BIM documents are intended to form part of the contract, which may lead to a lack of certainty and consequently the risk of more disputes.
Parts of these documents go beyond simply the use of BIM and are aimed at dealing with digital data generally. This seems sensible given the fast moving pace of technology. It seems likely that the UK will need to follow suit at some point to cover other digital data where it impacts the parties interactions and responsibilities.
In the catchily-titled 10 Reasons Why Your Construction Project Needs ConsensusDocs document, the wide endorsement of ConsensusDocs across the industry is highlighted, and it is asserted that it saves time, costs and mitigates disputes and claims. However, parts of the ConsensusDocs are open to interpretation. Under the Addendum, a party’s potential responsibility for a model is wide ranging, including a Contribution that “arises” from that party’s “access to that Model”.
“Access” is not a defined term, and the definition of “Contribution” is “the expression, design, data or information that [the parties to the project, including subconsultants/subcontractors] (a) creates or prepares, and (b) incorporates, distributes, transmits, communicates or otherwise shares… for use in or in connection with a Model for the Project”.
Arguably, as a definition it’s wide enough to give rise to misinterpretation and therefore misunderstanding. It is obvious from this that it is not advisable to simply adopt standard form documents wholesale without considering the intended impact.
Meanwhile, Stein and Wiecha (2009) suggest that AIA documents and ConsensusDocs documents are not necessarily compatible. This illustrates that, regardless of jurisdiction, the contract terms need to be considered carefully to avoid unanticipated legal or contractual issues.
In contrast to the US and UK, BIM protocols are apparently being formulated but are generally not forming part of the contract documentation.
Technology to facilitate (or even partially automate) the transition from design model to construction model is developing. An industry example supporting this is the BIM-MEPAUS initiative developed by the Air Conditioning and Mechanical Contractors’ Association (Kuiper and Dominik (2013)).
An objective of the initiative is to develop a dataset of components that can be readily incorporated into design and for modelling, comparable to the NBS National BIM Library. This level of detail reduces the need for on-the-job RFIs/clarifications.
Projects that have been publicised to have utilised BIM include the Adelaide Oval upgrade and the South Australia Health Medical Research Institute facility, as well as facilities management at the Sydney Opera House.
The issues highlighted as arising as barriers to BIM in Taiwan are similar to those in other jurisdictions, ie inconsistencies between software; errors caused by software imperfections; conflicts in intellectual property rights and BIM in construction contracts, and on similar basis (for example the application and scope of intellectual property rights granted under statute). Legal issues peculiar to BIM are argued to be limited.
Taiwan faces similar interoperability issues as in the UK. It has been suggested (Hsieh, Yeh and Hsu, 2012) that due to a failure to clearly regulate a common software platform, leading to interoperability issues, issues may arise between the employer and the various contractors/consultants due to the provisions of Article 271 of the Taiwan Civil Code which provides that “when several persons or companies undertake the same obligation, and if the items of performance are divisible, each of them shall be responsible for or be entitled to the obligation equally, unless otherwise provided by the act or by the contract.
The same rule would be applied when performance is converted from indivisible to divisible.”
A Taiwanese lawyer suggests that the requirements of the Taiwanese Trade Secret Act are followed to ensure that the know-how in a given BIM model is protected under that statute. How practical this would be in practice is questionable given the exchange of information between parties, and the employer’s intended continued use of the models to maintain the property for its life cycle.
A more practical solution would be to insert appropriately worded confidentiality provisions in the contract, where it is unavoidable to include commercially sensitive or confidential information within a model or dataset.
Singapore strongly promotes the use of BIM and has gone further than the UK by making it compulsory for architectural plans more than 20,000 sq m which require government agencies’ approval to be submitted in BIM-file formats from June 2013.
The UK v everyone else
Arguably, the Scandinavian countries and the USA have a head start on the UK in terms of the realisation of BIM, having been actively using it for a longer period, while Singapore has significant BIM-use requirements. However, it appears that only the UK government has displayed the degree of active, organised level of development and implementation.
This means, in practice, that a greater percentage of the industry has been obliged to become BIM-aware, and indeed BIM in the UK seems to be developing at a far greater pace. It would not be surprising if other countries look to the UK for BIM guidance in the future.