Law and order: Legal and contractual considerations for BIM

Building information modelling (BIM) is now extensively used in the design, construction and operation of buildings. It has been adopted across many building types by both the public and private sectors, driving improvements in team collaboration, accuracy and efficiency within the industry.

Technology and systems are being enhanced and fine-tuned all the time – but one thing that has lagged behind is how to deal with the legal and contractual matters associated with BIM. There are several issues to be dealt with, including: definitions and ownership of the model; fees; professional indemnity (PI) insurance levels; Construction (Design and Management) Regulations; consultant appointments; and building contract. The CIBSE BIM Steering Group has created a resource that aims to highlight these different areas and give advice on how to deal with them in a range of scenarios. The full report is available at the BIMtalk site, but here we outline some of the issues the industry needs to address.

Legal and contractual concerns vary significantly depending on the client brief and the procurement process, as well as the scope of work carried out by the contractor and consultant. That said, there are common scenarios:

• Early engagement with a prime contractor
• Novated to main contractor on a design-and-build project
• Traditional procurement to tender at RIBA Stage 4. Contractor to complete the design.

One common issue is the traditional procurement route, where the consultant produces a Level 2 BIM to RIBA Stage 4 and then converts it to 2D drawings and specifications for tender purposes, based on notional plant and equipment manufacturers. The successful contractor and subcontractors then produce their own Level 2 BIM, based on the actual plant and equipment procured.

Some may say this is wasteful and that the client is paying twice for the model. On the other hand, the client gets the best of both worlds: the consultant defines clear systems, specification, parameters, space planning, routing and distribution to achieve competitive and meaningful tenders, while the contractor brings his commercial and ‘buildability’ skills.

An alternative route, such as quick engagement with a prime contractor, may lead to early meetings with the designers, the subcontractors and supply chain, resulting in the BIM model only being created once. In this case, the client would still want to see competitive tendering.

Above all else, though, the definitions of 3D, Revit, and BIM 1, 2 and 3 have to be the same for all options – and industry wide. Failure to ensure this leads to confusion and differing expectations, and complicates contractual obligations.

Fees, appointment documents and building contracts must also be back-to-back, well-defined and thorough, and lead to clear agreement of responsibilities by all parties. The more aligned the team is, the less risk there is with the project. A detailed BIM execution plan should be created by the whole team at the earliest possible stage, defining the project intent and how the work will be implemented. This will clarify who has responsibility for the model. The client ultimately owns it because they are paying for it.

Fees

Fees should increase in proportion to the scope and extent of the works required. The decision about whether the consultant or the contractor creates the Level 2 BIM model must be appropriate for the procurement route and agreed at the outset. If responsibility is split, this should be defined in the request for proposal (RFP), fee proposal, appointment documents and building contract, and reflected in the BIM execution plan.

Where roles are separate, the consultant’s appointment should be defined at the RFP, fee proposal, BIM execution plan and contract document stages, so the contractor understands the consultant’s responsibilities. PI insurers should then be notified about any additional services being provided. 

Building managers and building services maintainers  should be given enough relevant information for the ongoing management of the asset, allowing for the adaptation or extension of systems.   

As an industry, we need to be BIM-ready. Avoidance is not an option, especially as all centrally funded government work must now use it. If contractual issues can be addressed and more clarity created, we’re confident the industry and its clients will reap the rewards of BIM.

Phil King FCIBSE is design director at Hilson Moran.