“Say it once, say it correctly, and say it in the proper place” is a maxim popularised by US specification expert Phil Kabza, fellow of the Construction Specifications Institute. It applies equally to the challenges of using BIM in this country.
The relationship between BIM and the contract documents raises issues. In drafting employer’s information requirements (EIRs) and BIM execution plans (BEPs), we are introducing a new level of procedures and rules into the construction process. This can give rise to duplication or inconsistency between traditional JCT, NEC or other contracts and specifications based on a 2D-design context, and the new BIM processes.
Where BIM is adopted “ad hoc” there will often be no express legal drafting to address any of these issues. Indeed, if anyone is investigating what exactly forms a contractual requirement, the starting point may well be whether the EIRs and BEPs are recognised as “contractual” documentation at all.
In the absence of any written agreement, the answer may depend upon what was said in requesting or agreeing to the use of BIM. Having established whether the BIM documentation has contractual force, issues may then arise if there are inconsistencies with other contractual documentation.
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It is sensible to create protocols and procedures to manage this problem, but there is no accepted precedent. However, there are matters to consider:
- What status should we attribute to BIM protocols such as BEPs and EIRs?
- What status should be attributed to the information produced by such procedures?
- How should we resolve inconsistencies with PAS 1192-2 procedures, and other information or processes set out in the contract?
Take the status given to information produced as part of a BIM process, such as a BIM object contained within a model or held in the common data environment. How does this relate to traditional specifications and drawings produced for 2D design? Should the outputs of the model take precedence over any 2D drawings issued for the project? If there is a contradiction between the data in a BIM object and the specification, should the BIM object take precedence over the written specification?
If these questions are not addressed, uncertainties can arise between the delivery and processing of traditional and BIM information. The standard contracts cannot be blindly applied, as differing approaches are adopted.
Interpreting contracts can be complex and costly. Look, for example, at MT Højgaard A/S vs E.On Climate and Renewables UK Robin Rigg East and Another. In this case, heard in the Court of Appeal in February 2015, contracts relating to a Danish off-shore wind farm gave rise to significant problems of interpretation because technical specification and contract documents were not clearly drafted or aligned.
The best advice must be for anyone with responsibility for EIRs, BEPs and other BIM processes to carefully consider how they relate to other procedures and obligations under the contract.
By Tim Willis, a consultant in Trowers & Hamlins’ dispute resolution and litigation department
