Is your lawyer or commercial adviser up to giving you the advice you need in order to incorporate Building Information Modelling (BIM) into your contractual relationships? Just as adoption of BIM Level 2 has not been as widespread or enthusiastic as its promoters hoped, it seems that not all lawyers are yet up to scratch with the legal implications.
Confusion surrounds how to address contractual obligations in relation to BIM. Possibly some construction law specialists have not been able to provide clients with the level of expert advice they need in relation to BIM because they fail to understand either BIM or the construction process?
Readers of Construction Law have however seen evidence in our articles that at least some construction law specialists have a good appreciation of how BIM fits into the construction process and what the industry’s current failings are in relation to BIM. The suspicion that some do not share this level of expertise was heightened by the revelation that legal and commercial specialists are offering different definitions of BIM Level 2, according to the Winfield Rock Report.
The report, launched in February, was produced by May Winfield, Senior Legal Counsel at ENGIE Services Ltd, and Gowling WLG senior associate Sarah Rock. It investigates the understanding of BIM among the legal community and reveals existing legal and contractual barriers to its more widespread adoption.
The report examines levels of maturity, the PAS1192 suite of standards, integration of BIM into standard form contracts, BIM specific documents and the legal community’s awareness and knowledge of BIM.
The report found that all specialists interviewed had a different definition of BIM Level 2. It concludes that the definition of BIM Level 2 – and perhaps even BIM itself – should be assessed on a project-by-project basis and incorporated in contracts accordingly.
The report’s authors said it would be fair to conclude that the construction industry’s perception is that the level of BIM knowledge and awareness within the legal community is not high. Knowledge of BIM was growing within the legal community, but there was a clear need for lawyers to have greater understanding of the processes, BIM-specific contract terms and documents and improved collaboration with technical colleagues.
As the authors acknowledge, BIM has been shaped largely by the development of the PAS1192 suite of standards but there have been significant inconsistencies in its application.
An overly zealous and rigid interpretation would not deliver good results, it was found. Some of those surveyed however felt the suite was being used too flexibly. The report’s authors conclude that the way to utilise the PAS1192 suite of documents is to consider their use and application on a project-by-project basis.
Release of the second edition of the Construction Industry Council’s BIM Protocol, in April might help (see News).
The second edition follows significant consultation with the construction industry, legal practitioners and standard contract publishing bodies.
It is closely aligned with PAS 1192-2 and can be used alongside a range of different contractual arrangements. It should help provide some more clarity as to how contractual obligations in relation to BIM are addressed. If the collaboration potential of BIM is to be fully realised clearly there remains an education job to be done.
Nick Barrett
Editor