Out-Law Analysis 5 min. read
24 Aug 2017, 5:09 pm
Contractors are continually looking at new ways of tendering for and delivering construction services which will deliver improved long-term value to clients and more realistic margins to contractors, supply chain members and professional teams. This focus, combined with the increasing reference to BIM in the standard form contracts, is likely to accelerate the use of technology and, more specifically BIM.
As BIM starts to become more prevalent in the industry and the sector continues to work towards the government's Level 2 BIM target, it is more important than ever for main contractors to be aware of the issues, risks and opportunities which arise from the use of BIM. These tips should assist.
Have the right expertise in place
Find out whether the employer requires the use of BIM at the outset of the project, and consider whether you have the expertise to deliver it. If you do not have experienced in-house resource, consider engaging an experienced, competent BIM consultant to assist you.
Having the required expertise at the outset of a project means that you are more likely to be able to maximise the advantages to you of the use of BIM on the project. In addition, although projects are bespoke, the knowledge gained will be transferrable to other projects - creating further opportunities to recoup the investment.
Define the employer's requirements
Is the employer experienced in the use of BIM? If they are experienced they may be able to prepare the BIM brief themselves. If not, you may wish to recommend that the employer engage its own BIM consultant to draw up the BIM brief and initial employer's information requirements (EIRs) with regard to BIM. It is to everyone's benefit that the EIRs are clear at the outset in order to minimise misunderstandings, disputes and irrecoverable costs.
Where the employer is less experienced, you may find yourself assisting the employer in identifying its requirements. This could be to your benefit, as you may be able to influence the process to maximise the benefit to you of the use of BIM on the project.
Consider your supply chain
Do you have a BIM-enabled supply chain? Will they allow you to meet the employer's terms and conditions; and will the fact that this is a BIM project affect the subcontractors' contract sums? It is important to have these conversations early on, so that you are able to capture any increase when pricing the main contract.
Bear in mind that the use of BIM on a project may mean that clashes are prevented at the design stage, potentially reducing the need for changes during the build.
Draw up your BIM execution plan
You will be required to draw up a BIM Execution Plan (BEP), setting out how you will meet the EIRs. Again, unless you have relevant and sufficient in-house experience in preparing a BEP we recommend that you engage an experienced BIM consultant to do this.
The parties will need to decide which documents are to be the BIM contract documents. The BEP tends to be updated regularly, and so the EIRs and BEP will become inconsistent fairly quickly.
Remember that BIM isn't design but rather a digital representation of design intent, and the model is a contract deliverable. The employer may also require you to deliver 2D documentation under the contract, so you should agree whether the models or the 2D documentation extracted from the models takes priority. A benefit of BIM is that if an element is changed, the diagrams are updated automatically; speeding up the 2D process.
Aim for early involvement
Does the procurement route allow you early involvement in the design stage? If not, the model you inherit may not be suitable for your use during the build and may require you to validate the content when it is handed over. This may be costly and time-consuming, particularly if you do not have the required skills in-house.
Again, investment in an experienced BIM consultant early on can assist you in this regard.
Consider a BIM protocol
How does the employer intend to incorporate the BIM provisions into the contract? We recommend the use of a protocol, such as that issued by the Construction Industry Council (CIC), rather than inserting BIM provisions through a schedule of amendments. The protocol sets out the parties' obligations and rights with regard to the BIM provisions and, given that the provisions are all contained in one schedule, may be 'stepped down' to the supply chain with minimal amendments.
The CIC BIM protocol is expected to be updated in the next few months, so we do not advise on its content here. Instead, we recommend that you take advice with regard to its provisions, particularly on how the risk associated with data transmission and corruption is allocated. Ensure that the rights and obligations are stepped down to the supply chain where relevant via your sub-contracts.
If you are using the CIC BIM protocol, ensure that the model production and delivery table (MPDT) at appendix 1 is correctly completed and appended to the protocol for each party. It is important that the MPDT, which sets out responsibility for preparing the models and the detail the domain models are to contain at each stage, is correctly completed as this is a potential area for dispute.
The information contained in this table also sets out the extent of the copyright licences which will be granted by a party for the use of its model. In the early days of BIM design, contractors were particularly concerned about ring-fencing their intellectual property rights. However, as parties have built up their own BIM libraries they have come to the realisation that access to their intellectual property does not necessarily give other parties a commercial advantage, and this is not now considered to be as much of an issue.
Consider the cost implications of novated design team
If the design team is to be novated to you from the employer, will the protocol need to be varied? Consider this when pricing the main contract so that you are able to reflect any increase in fees. If not all of the design team is being novated, consider how the responsibilities will be allocated following novation as again there may be a fee impact.
Consider information sharing arrangements
Agree who is to be responsible for information sharing. If the form of procurement is design and build, you are likely to want to engage the BIM manager. The BIM manager is the data guardian with responsibility for information exchange, extracting data and data security and has no design responsibility.
Given the variety and interoperability of BIM software, converting between software can cause corruption issues and it is usually the BIM manager's role to validate the data. Again, you will need to price for this.
Keep an audit trail
Inform your insurers that BIM is being used on a project, and keep an audit trail of updates to the model.
Richard Dartnell, David Greenwood and Marion Hitchcock are BIM experts at Pinsent Masons, the law firm behind Out-Law.com.