How to overcome legal and contractual barriers to BIM

May Winfield and Sarah Rock explain why they wrote their report Overcoming the Legal and Contractual Barriers of BIM and summarise what’s in it.

After reviewing too many contracts containing vague obligations and undefined terms such as “The project will be delivered to BIM Level 2”, and encountering disputes resulting from incomplete or vague BIM documentation, we felt it was time to do something proactive to move things forward to support the legal side of BIM.

With only one reported case remotely touching on BIM, we set out to tackle this issue head on in September 2017. The research consisted of an online survey, which received 158 responses on the use of BIM and BIM documentation.

We also interviewed 44 key industry players consisting of a mix of clients, contractors, consultants, academics, and both in-house and private practice lawyers, to take a more detailed look at the current position.

The Winfield Rock Report was launched in association with the UK BIM Alliance at BIM Show Live on 28 February 2018.  We have been humbled by the positive responses so far, with the report being said to be a “very important piece of work”, “much needed” and a “seminal piece of work” which “sets the benchmark”.

Reporting on the findings of both the online survey and the one-to-one interviews, the report is intended to provide a thorough and detailed review of the legal community’s understanding and position on BIM, believed to be the first of its kind in the UK.

At the BIM Show Live launch, we took the audience through some of the findings and our suggested strategy to overcome the legal hurdle and assist with implementing and understanding BIM more widely.

The report considers the position on levels, standards, standard form contracts, BIM-specific documents and the legal community generally. We summarise some of the main findings below.

Levels

The UK government’s BIM mandate that came into force in April 2016 has been widely accepted to imply or mean achieving BIM Level 2. However, each of the 44 interviewees of the Winfield Rock Report provided different definitions of “BIM” and “Level 2”.

With the prevalence of the seemingly magic standalone contract term, “You will achieve BIM Level 2” (or similar) without further detail, this wide variation in understanding could give rise to a real risk of misunderstandings and unintentional disputes. Would the solution be for a formal definition to be issued?

Standards

The lawyers acknowledged the existence of other standards applicable to BIM, however, given the time available to research and write this report (in addition to our day jobs), we focused solely on the 1192 suite.

There were differing views about the standards. Some interviewees found them too rigidly applied, with one interviewee noting that it had become a badge of honour to know them off by heart. Conversely, others found the standards too loose or vague. However, the interviewees were in general agreement that the standards were certainly an essential starting point.

The Report also briefly considers the ISO 19650, which deals with BIM internationally and is anticipated to be issued soon.

Standard form contracts

The Report reviews many of the commonly used standard form contracts used in BIM-enabled projects, although again, we were unable to analyse every available standard form contract in detail in the time and scope available.

It was discovered that interviewees again diverged in their views. Some liked the flexible approach of the JCT and NEC, whereas others felt their provisions were too “light a touch”. This is despite the introduction of more extensive BIM provisions in the JCT 2016 and NEC4 compared to their previous iterations.

The NEC4’s introduction of universal terminology in their Option X10, which is intended to cover the BIM process, drew concerns at the introduction of even more acronyms and terminology in an industry where, as a couple of interviewees put it, the “jargon in BIM is horrific” and lawyers are “bamboozled” by it.

We interviewed senior representatives from JCT and NEC, who provided enlightening explanations on their respective approaches to BIM which we summarise in the report.

BIM-specific documents

The interviewees generally agreed that the Employer’s Information Requirements is a fundamental document, as it sets out what the client envisages and wants from the BIM process at the outset. However, the experiences varied widely as to the quality and content of the EIR – with some EIRs being incomplete or no EIRs being provided at all.

There were differing and strongly held beliefs as to whether a BEP should be a contract document, partly due to its changing nature and partly due to the administrative burden of enforcing such a moving document.

Could some of the issues and concerns with both the EIR and BEP be resolved by the issue of standard form precedents for each? While no industry-wide accepted standard precedents exist at present, it is rumoured that standard forms may be issued in the near future.

The interviewees were overall complimentary of the CIC BIM Protocol, although there were concerns about certain clauses, in particular the priority of documents clause and elements of the copyright provisions.

One of the authors of the CIC BIM Protocol did inform us, during the research for the Report, that version 2 of the CIC BIM Protocol will be issued “soon”, although he was unable to provide a specific date.

It is possible that many of the concerns raised by interviewees will be at least partly resolved by version 2 of the CIC Protocol, which will take into account the lessons learnt in the BIM journey since it was first published in 2013.

Legal community

There appears to be the perception that lawyers lack a sufficient understanding of BIM, viewing it as a technical matter and thereby remaining uninvolved in the review and completion of the BIM documentation. We heard stories of BIM Protocols being inserted into contracts with incomplete Appendices, or an EIR referring to the CIC Protocol, but this document not in fact appearing in the contract documentation.

One lawyer suggested to us that these issues may be due to the legal community’s perception that BIM was “CAD on steroids”. Indeed, the authors have heard BIM being referred to as “simply fancy CAD”.

There was, however, sympathy among the industry that there was a lack of readily available resources, such as guidance and training, for lawyers to get up to speed on BIM from a legal and contractual perspective.

The legal community was further limited by their clients’ instructions; the clients may equally not be sufficiently BIM-aware and be unable to provide sufficient clarity of what they want in terms of risk allocation and scope of the BIM process. Where this is the case it is virtually impossible for lawyers to draft terms without clear and precise client instructions.

Conclusion

Taking into account the survey results and interviewees opinions, as well as our own further research, we made two recommendations to progress BIM within the legal community.

The first is the establishment of a collaborative forum for lawyers and those who instruct them, to meet, network and learn from each other via events and other avenues. We have set this up as BIM4Legal, and you (and your lawyers) can register interest at [email protected] and follow @bim4legal for updates on future events.

The next recommendation was the preparation of a non-exhaustive Legal Questions Checklist, as a guideline and starting point for lawyers new to BIM on the questions to ask their clients to obtain necessary information to draft and advise on BIM-enabled contracts, negotiations and other related issued. This Legal Questions Checklist can be found in the Appendices of the Winfield Rock Report 

The Winfield Rock Report can be downloaded here.