15.09.2023

How to load a magic bullet: Legal considerations to facilitate BIM (Building Information Modelling)

Building Information Modelling, or “BIM”, is potentially transformational for the New Zealand building and construction sector.  It has been credited with the potential to spark a “step-change” in productivity and deliver substantial construction and lifecycle performance benefits[1].  However, despite being heralded as something akin to a “magic bullet” and being integral to the success of projects that it is used on, often its legal implications do not receive enough attention.  We briefly look at what BIM is, and legal considerations to bear in mind when using it.

What is BIM?  

Those who are unfamiliar with the full potential of BIM may just associate the concept with a 3D model of a structure to be built.  Others may recall that it acts a tool through which architects, engineers, subcontractors and other construction professionals can collaboratively design, plan, and monitor a construction project. 

However, BIM goes far beyond just being a collaborative 3D model.  One commonly used definition is:

“[BIM] is a digital representation of physical and functional characteristics of a facility creating a shared knowledge resource for information about it forming a reliable basis for decisions during its life cycle, from earliest conception to demolition.”[2]

A BIM model is intelligent: the components contain metadata on their characteristics (eg performance values, design life, manufacturer, safety and maintenance requirements etc).  This allows better 3D and lifecycle visualisation of the entire project and the physical and technical interactions between its various components, meaning that:

  • BIM can identify design clashes automatically as variations are inputted into the model.
  • BIM facilitates collaboration across trades and with consultants while simplifying the way that parties to a construction project communicate, share, and understand design concepts.
  • The BIM model evolves over the course of a project to provide comprehensive data to the end user which can be used to form decisions on how the built asset will be used including sustainability, safety, and maintenance considerations.

This all leads to efficiencies in the design, construction, and lifecycle use of the project. 

The advantages of BIM have resulted in it being adopted worldwide since its emergence in the United States in 2003, with governments in Europe, South America, the Middle East and South East Asia mandating its use on specified government projects.

In New Zealand, BIM usage has been significantly increasing[3], and the government has also begun mandating its use[4] in accordance with the New Zealand BIM Handbook.[5]

Legal Implications of BIM

BIM has the potential to affect almost every aspect of a project.  It is therefore important that it be properly integrated into project contracts, including adequate linkage into the risk allocation between the parties (ie considerations of time and money).

It is common for a project using BIM to reference at least some form of BIM brief[6] or protocol.  The New Zealand BIM Handbook in fact suggests that a number of project documents be included into the contract documentation addressing BIM.[7]

However, despite the detail in these documents, it is less common for a project’s general and special conditions of contract (Contract Terms) to be properly integrated with relevant BIM processes.  Examples of potential gaps between the risk allocation in the Contract Terms regarding BIM can include:

  • BIM management It is important for Contract Terms to address who has responsibility for hosting, managing, and facilitating the BIM model (and to what service levels / KPIs). Terms should be included addressing what happens if access to the BIM model or BIM data is lost (eg software error, server downtime, corruption of data etc) and whether / how project participants can claim / are liable for resulting time and cost consequences.
  • Collaborative working – Given the importance of collaborative working within BIM processes, Contract Terms should address to what extent parties have an express duty to collaborate in this regard and/or the extent to which an applicable duty of “good faith” exists.
  • Failure to follow BIM processes Contract Terms should likewise address what happens when a project participant fails to properly follow BIM processes, resulting in increases in time, cost, or defects and whether / how project participants can claim / are liable for resulting time and cost consequences. 
  • Design responsibility / co-ordination Standard Contract Terms regarding design responsibility and co-ordination should be updated to reflect that most of this process is taking place collaboratively through a BIM model and to match up with the BIM processes. 
  • Intellectual Property – BIM documentation usually envisages a relatively free exchange of BIM-related information and modelling, sometimes with specific labels (issued for information; work in progress) which are intended to guide different parties’ engagement with the information / models. However, to support this, it is important that the Contract Terms properly address the intellectual property rights associated with this information exchange and the collaboratively generated design which results (including ownership, usage, and liability for infringement of third-party rights).
  • Confidentiality Given the relatively free exchange of BIM-related information and modelling, it is important also that confidentiality obligations (and any protocols to protect confidentiality such as non-disclosure agreements) be properly addressed.
  • Programming – Contract Terms should address the interface between the project programme and BIM, including when BIM inputs may be required and what occurs if / when conflicts arise between the BIM processes and programmed activities.
  • Variations and Extensions of Time (EOT) Contract Terms should consider to what extent proper use of the BIM model may be integrated into Variation and EOT claim mechanisms, including: to what extent information issued through the BIM model may be considered an instruction or lead to a Variation; whether reference needs to be made to the BIM model as evidence to support such claims if appropriate; whether proper use of the BIM model would have resulted in a claim being made / assessed earlier; and whether the BIM model may assist in valuation of a Variation / proper assessment of an EOT.
  • Contractual Status Contract Terms should address the extent to which the various BIM documentation (and the BIM model) are to be considered “contract documents”, how they are to be interpreted as such, and where they fit within any order of precedence amongst such documents.
  • Completion Contract Terms should consider the extent to which parties may access the BIM model after substantial / final completion.
  • Dispute Resolution Flowing on from the above, Contract Terms may consider specifying the extent to which project participants may access or use a BIM model for the purposes of dispute resolution.

Summary

BIM has the potential to provide enormous benefits to projects, but it is important to ensure it is properly integrated with and facilitated by other contract documents.  Doing so will provide the best chance of allowing this “magic bullet” to deliver on its potential and help avoid the risk of any ‘misfire’.

If you have any questions about BIM, and how it might be integrated into your contract documents / properly reflect the risk allocation between the parties, please get in touch with our Construction Team or your usual contact at Hesketh Henry.

 

Disclaimer:  The information contained in this article is current at the date of publishing and is of a general nature.  It should be used as a guide only and not as a substitute for obtaining legal advice.  Specific legal advice should be sought where required.

 

[1] BIMinNZ Steering Group (https://www.biminnz.co.nz/); New Zealand Government Procurement, Construction Procurement Guidelines October 2019 v2.0 (https://www.procurement.govt.nz/assets/procurement-property/documents/building-information-modelling-construction-procurement.pdf)

[2] Keith Snook, former head RIBA Director of Research; Practical Law Construction Article: Building information modelling (BIM): FAQs found at https://uk.practicallaw.thomsonreuters.com/3-522-0260

[3] In 2021, the BIM Acceleration Committee released its 8th Survey on BIM usage in New Zealand which found that 70% of respondents who were survey had used BIM in 2021, up from 34% in 2014.  The survey also noted that 83% of the construction industry have experienced improved output quality due to BIM.

[4] New Zealand Government Procurement, Construction Procurement Guidelines October 2019 v2.0

[5] https://www.biminnz.co.nz/nz-bim-handbook

[6] See Section 5.2 and Appendix E of the New Zealand BIM Handbook for a template and example of a project BIM Brief; available at https://www.biminnz.co.nz/nz-bim-handbook

[7] Including the Project BIM brief, the BIM evaluation and response template and the Project BIM execution plan.

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Contact the expert team at Hesketh Henry.
Kerry
Media contact - Kerry Browne
Please contact Kerry with any media enquiries and with any questions related to marketing or sponsorships on +64 9 375 8747 or via email.

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