France Telecom: lessons for UK employers following 'institutional harassment' ruling
Out-Law Analysis | 10 May 2018 | 11:02 am | 6 min. read
The BIM4Legal collaborative forum, which will host events and encourage networking between lawyers involved in BIM projects and those who instruct them, officially launched at the end of April with an industry event. BIM4Legal has been set up in response to the Winfield Rock report on overcoming the legal and contractual barriers to greater BIM adoption, authored by May Winfield and Sarah Rock and published in February.
The conclusions of the report ring true from our perspective. Its commentary on the mixed take up of BIM, potential blockers and the role that the legal community could and should be playing to assist the delivery of projects using BIM all help to move the debate forward.
However, the report could perhaps have gone slightly further to identify why some parts of the industry are still not convinced by the apparent benefits of delivering a project using BIM and how, practically, the advocates of BIM might encourage the rest of the industry to adopt and get the most out of BIM.
In our second Collaborative Construction report, published in October 2017, we considered the most prominent issues regarding the current use of BIM in the UK construction industry. We believe that BIM is already helping to drive greater collaboration throughout the construction industry and delivering benefits for all parties. However, the industry is really only just getting started using and understanding BIM, and continued use should generate a 'virtuous circle' of BIM adoption as more and more parties become familiar with the technology and its benefits.
Our report made a number of recommendations to speed up this journey and make it smoother for all parties, including making BIM use a contractual obligation both in the construction contracts and the professional team appointments. While the Winfield Rock report hints at this, as outlined in our report, it is incumbent on those who are already using and benefitting from the technology to spread the message of its many advantages for both employers and contractors.
The Winfield Rock report
Published on 28 February with the backing of the UK BIM Alliance, the Winfield Rock report set out to consider the current state of play with regards to BIM and related contractual issues among the legal community and those who instruct them. In various blogs published to coincide with the launch of the report, the authors said that they felt the need to be "proactive" after reviewing too many contracts with incomplete or vague BIM documentation, or containing undefined terms such as "the project will be delivered to BIM Level 2".
Winfield and Rock set up an online survey and conducted in-person interviews with lawyers, clients, contractors, consultants and academics about their current understanding of and feelings towards BIM. They found, amongst other things, a wide variation in understanding among respondents of what is meant by achieving BIM Level 2, despite the UK government's BIM mandate, and wildly differing views about the other standards applicable to BIM and the approach to BIM adopted by the various standard form contract suites.
The authors made two recommendations aimed at improving understanding and progressing adoption of BIM within the legal community and, by extension, the construction industry: first, the creation of BIM4Legal as a forum in which the legal community and its industry clients can exchange ideas, gain knowledge and network; and second, a checklist of questions which lawyers can refer to when drafting and advising on BIM-enabled contracts and negotiations.
Collaborative construction: our recommendations
It is clear from both the Winfield Rock report and our own research that the government, which has mandated the use of BIM Level 2, and the wider 'BIM industry' needs to become far better at explaining to the construction industry as a whole what the benefits of BIM are. In our view, this message should particularly focus on the benefits that BIM can bring to clients, since it is the clients who really have the power and influence to drive greater BIM use within the industry.
Following on from this, there must also be a particular focus on highlighting the cost savings that can be obtained by the use of BIM. It is this information that will be the real catalyst for more clients deciding to use BIM on their projects. This analysis should be based on non-central government and private sector projects and refer to real figures and real savings, which means that it will require some input from the industry.
The other main recommendations from our report are summarised below.
Making BIM use a contractual obligation
Use of BIM needs to be driven by clients and included as a contractual obligation in the construction contracts and professional team appointments. This will also obligate all relevant parties to use BIM as required by the clients, rather than as they would like to use it. However, in order to work effectively, this will require clients to include clear BIM obligations, including a well-written set of client's information requirements, in the relevant contracts.
Simplified, standardised BIM documentation in plain language
A common theme from both our research and the Winfield Rock report is the industry's need for a simple and clear set of BIM standards and documents that make BIM and its implementation easier to understand. For example, a well-written, standardised template client's information requirements and a BIM execution plan that could be used for all BIM projects would be of great benefit to the industry. Industry standards, including the applicable British Standards and Publically Available Specifications, should also be reviewed to make sure that they are as effective, clear and understandable as possible.
Uniform software and technology
Those working with BIM would also be well-served by the emergence of a single popular BIM software that becomes widely adopted throughout the industry. Interoperability is one of the biggest issues affecting the industry today and uniform software, technology and a harmonisation of IT systems will reduce the need for additional cost, administration and training.
Financial assistance for those not yet 'BIM-enabled'
Financial assistance for those organisations who wish to become BIM enabled but who have not yet been able to do so will reduce the possibility for a 'two-speed' industry to develop as BIM adoption becomes more mainstream. This could take the form of grant funding, tax incentives or other methods to enable organisations to procure the relevant software and other technology and train their employees to the requisite standards.
More widespread training and education
As we have seen, there appear to be many misconceptions and a distinct lack of understanding about BIM from the legal profession, clients, designers and project managers/quantity surveyors. Greater education and training will address these knowledge gaps.
Disciplined use of BIM
Like any effective tool, the trick with BIM is in knowing how and when best to use it. BIM creates a large amount of information and data, but granular detail too early in the project - for example, at the planning stage - can create confusion. There is also a need to think carefully about the outputs from using BIM, as some aspects may be too burdensome or not suitable for all clients. Workflows need to be managed properly, as there is potential for significant misinterpretation to occur.
Greater contractor and supply chain involvement
Making good use of BIM really needs early contractor engagement, which will in turn lead to greater collaboration. On a typical design and build project where the main contractor comes in at a later stage, it is to some extent at the mercy of what has already been designed by others. Involving the main contractor and lead designer earlier allows for greater information sharing and co-ordination, and improves efficiency.
Taking this a stage further, a procurement route that truly connects the design team to the specialist sub-contractors would also help to generate far greater collaboration and efficiency.
As of this week, the government has asked the Centre for Digital Built Britain (CDBB) to act as the custodians of the integrity of the UK BIM programme, as well as being recognised both nationally and internationally as that institution. The CDBB will support existing communities and strategic organisation work to promote BIM; including government departments, UK BIM Alliance, the digital transformation network, buildingSMART and the Institution of Civil Engineers. We anticipate that this will mark a significant step in the right direction and fuel the greater take-up of BIM across the industry.
David Greenwood is a construction advisory and disputes expert at Pinsent Masons, the law firm behind Out-Law.com.
France Telecom: lessons for UK employers following 'institutional harassment' ruling