Support for building information modelling (BIM) in Ireland is gathering pace. Dublin recently hosted the CitA BIM Gathering 2015 – An Integrated Future,(1) which has been described by delegates as "one of the best international BIM events of 2015".

Incorporating BIM into contracts

BIM is regarded as a powerful risk and cost management tool, encouraging better collaboration and leading to efficient working and improved project delivery. Contractors are already utilising BIM to help them to gain competitive advantage in the marketplace.

Significant work has been undertaken in the United Kingdom in relation to BIM, including the publication of the Construction Industry Council BIM Protocol(2) and the Publically Available Specifications (PAS) 1192-2 document, which specifies the requirements for achieving BIM Level 2. From July 1 2016 the United Kingdom aims to promote widespread adoption of BIM Level 2 by requiring it to be included in all UK government infrastructure projects.(3) These developments have not gone unnoticed in Ireland – the Royal Institute of Architects Ireland has adopted PAS 1192-2, and BIM is regularly used on public-private partnership projects.

Protocol and PAS 1192-2

The protocol was published in February 2013 in response to the UK government's construction strategy, which requires a minimum of Level 2 BIM on centrally-procured public projects by 2016.

The protocol is a relatively short document and serves as a supplementary legal agreement which can be incorporated into construction contracts and professional appointments and is intended to be a contractual document.

The protocol sets out various requirements, including:

  • the parties' roles and obligations in relation to the BIM model; and
  • the need for the client to appoint an information manager to coordinate the model.

The protocol guidance promotes the adoption of PAS 1192-2;(4) however, there is no reference to this document in the protocol itself.

Generally, the protocol is viewed as a good starting point for projects utilising BIM. However, there are differing schools of thought in relation to its value – for example, public works contracts (PWCs) in Ireland, which are a widely used form of construction contract. PWCs contain no detailed BIM terms. Some believe that PWCs require no major amendments to make them BIM ready. However, others are of the opinion that due to inconsistencies and difficulties with the protocol itself, significant work – including the incorporation of specific clauses dealing with BIM issues – will need to be undertaken to make contracts such as PWCs ready to deal with this modern, technology-enabled process.

Potential issues

New ways of working inevitably create new issues. BIM is a complex process which is not yet fully understood. In addition, issues may arise due to a lack of established case law, harmonised procedures and standards.

Critics have also highlighted that issues with the protocol itself could create further difficulties. Many have criticised the protocol on the grounds that:

  • it fails to deal with the ownership of and right to use BIM models;
  • there are contradictions in its terms (eg, the definition of 'material');
  • it fails to define BIM Level 2; and
  • there is no warranty from the parties regarding the integrity of electronic data that they provide.(5)

In particular, a major criticism of the protocol is that the copyright licence granted to the employer is revocable on non-payment of fees. The impact of copyright revocation on a BIM project could be substantial given the backdrop of shared data.

Critics therefore believe that specific BIM clauses and terms should be incorporated into the contract to help create certainty (eg, in relation to the allocation of risk or parties' responsibilities), which could help to avoid potential disputes and create more efficient working practices.

Copyright

BIM involves the contribution by different consultants and specialist contractors of separate designs to create a composite model. As such, issues in relation to copyright (of the data submitted by each party and of the overall model itself) inevitably arise.

In an attempt to get around such issues, at the outset of the project it is prudent for parties to consider and clarify in the contract who owns:

  • the designs (contributed to the model);
  • the model(s); and
  • the model's outputs.

Usually, the design will remain with whoever created it, but its ownership can often be a commercial call. The contract should seek to address to whom, when and for what purposes licences to use copyright will be granted. Parties may also wish to consider providing indemnities to each other from and against claims arising from a breach of the other's IP rights.

Risk allocation

It has been suggested that BIM is a useful risk management tool allowing parties to become aware of potential construction problems at an earlier stage in the project. However, on the other hand, the essence of BIM (ie, the collaboration between various parties to contribute to the final BIM model with multiple contributors using the programme) calls for the distribution of risk to be clearly defined between the various contracting entities. For example, where a building turns out to be defective due to a design fault, it may be unclear where responsibility lies if various parties have contributed design to the BIM model. Design responsibility may therefore need to be more clearly defined in contracts using BIM. Specific limitations and exclusions in the contract should also enable parties to know who is responsible for what, hopefully circumventing the risk of becoming embroiled in a lengthy dispute at a later date.

Another way to try to avoid potential disputes is to ensure that the various documents forming the contract contain the same standard of care. If there is any inconsistency (eg, between the use of 'reasonable endeavours' and the higher standard of care of 'best endeavours'), difficulties and disputes will likely arise.

Building information manager

The building information manager is set to play a key role in coordinating the use of BIM on projects (eg, keeping data secure and arranging access to data).

The manager role can be carried out by a professional consultant already engaged on the construction project, or by a separate consultant engaged specifically for the role. If the role of BI manager is undertaken by an existing consultant, a separate manager appointment should be drawn up to ensure that the respective roles and responsibilities are clearly defined.

When appointing a manager, the following issues should be clearly addressed and defined in the appointment:

  • the manager's scope of services; and
  • the scope of the manager's liability.

Comment

Support is growing for BIM in Ireland and indications from across the water suggest that the risks of using BIM are outweighed by the benefits. In terms of public contracts, whether the Irish government lends as much support to the use of BIM as has been the case with the UK government remains to be seen.(6) In the interim, BIM is already active in Ireland and looks set to be a prominent feature in an increasing number of construction projects in both the public and private sectors. While those using BIM can reap its benefits, it is important to keep a close eye on clarity and consistency in the contract documents to avoid potential pitfalls. This will necessitate a significant review of all standard form contracts in Ireland.

For further information on this topic please contact Kate Monaghan at Arthur Cox by telephone (+353 1 618 0000) or email (kate.monaghan@arthurcox.com). The Arthur Cox website can be accessed at www.arthurcox.com.

Endnotes

(1) November 12 and November 13 2015.

(2) The Construction Industry Council Building Information Modelling Protocol: Standard protocol for Use in Projects Using Building Information Models is available at www.bimtaskgroup.org/bim-protocol/.

(3) The United Kingdom is working towards the adoption of BIM Level 3 by 2017; however, this update deals only with BIM Level 2.

(4) See www.designingbuildings.co.uk/wiki/PAS_1192-2.

(5) Clause 5.1.

(6) The Office of Government Procurement's December 2014 report in relation to proposed amendments to PWCs referred to BIM as a "powerful risk management tool" and indicated that it would likely be made mandatory for "projects of a certain scale and complexity". However, the report indicates that this requirement is a medium-term goal, and not something which will be rolled out immediately.

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