Thread by @H_MycockOverell

OK - here goes! My take on the legal issues around #BIM and #winfieldrock...

#BIM has huge potential for improving collaboration, particularly early stage, in #construction and thereby reducing #disputes and #performancegap

Problem is the limited take-up particularly among private sector – reasons include lack of knowledge (of how to use and of benefits), lack of standardisation (in what BIM means and in proprietary programmes used, although moving towards #Revit – barrier for SMES)

See 2017 NBS National BIM Report thenbs.com/knowledge/nbs-… and compare with 2016 report thenbs.com/knowledge/nati…

Limited take-up on private sector projects means legal issues are still being explored – some common themes but some will be unique to individual projects / types of projects.

#Construction contracts set “the rules of the game” – but you need to (a) cover relevant scenarios and (b) makes sure the parties know the rules. Unclear contracts lead to disputes because what happens falls through the gaps of the drafting

I would far rather advise clients and assist with drafting/negotiating a contract to ensure issues are dealt with as far as possible than have clients ask me to help with #BIM disputes due to contract issues.

When reviewing a contract I always ask for technical schedules or flag need for their review (if not yet available) as they can contain relevant obligations which need to be considered in context of whole contract document – NB MT. Hojgaard v E.On https:// tinyurl.com/y7sog5rc

8.Parties are familiar with common types of amendments to standard form contracts, but many not yet familiar with amendments to deal with #BIM

#winfieldrock report is hugely important because it brings together and assesses current state of knowledge and practice for #BIM legal and contractual issues

My run-down of #BIM legal/logistical issues which need to be considered in drafting of any #construction contract on a BIM project:

1. What does #BIM mean on that project? No standard definition of what BIM or “BIM Level 2” means – so it needs to be made clear in terms of parties rights, obligations, deliverables

2. How is the project going to use the #PAS1192 standards? Guidance or requirements? Which bits? Again need to decide and state on project-by-project basis

3. Drafting of the #EIR is crucial – if the client isn’t clear on how it sees BIM working and what it wants from it, how can the project team comply and deliver? No standard form EIR yet – but any standard form would still need to be reviewed on each project

4. #JCT and #NEC have BIM-specific provisions – but as with any other clause, need to be reviewed to ensure suitability for specific project. #JCT2016 and #NEC4 provisions BIM are more extensive but still have flexible approach.

5.a. BIM Protocol – does it take priority, or underlying contract? JCT allows for Protocol but says underlying contract takes priority – but CIC Protocol says it takes priority – obvious contradiction.

5.b. NB NEC doesn’t allow for Protocol – relevant provisions need to be brought into Z clauses – views differ on which approach is best

5.c. Also we’re waiting for the new CIC BIM Protocol (current one 2013) – will it have different options to accommodate different #procurement routes?

6. #BEP is incomplete/changing doc at time of execution of contracts – can/should it be a contract document? My current view is no, to avoid "agreement to agree" and later confusion, but opinions differ

7. Do the #Protocol #EIR and #BEP (if in contract) use same definitions as main contract document? Inconsistency sows seeds of disputes

8. Blockchain / smart contracts – I’ll hold my hands up and say I read that section in #winfieldrock & thought I need to research this further, but would agree with the report that this is a long way from being standard and carries inherent risks as with any new technology

And now #BIM #risks that need to be addressed/allocated by the contract (to avoid later disputes):

1. What are parties actually required to do? Roles/responsibilities, software, intended model outputs, etc – client’s requirements will drive this definition

2. Contractors need to consider having a Protocol in their sub-contracts – or risk not passing on obligations so all risk sits with them. Sub-contractors may resist so pass-down needs to be tailored and specific

3. Intellectual property – does market standard position of designer retaining #ipr ownership & responsibility but granting licence need to change for BIM? Or just that terms of licence need to be broadened to accommodate access to/manipulation of underlying native model files?

3.b. Once third parties are accessing design – who is responsible for changes to that design? Designer, model owner, or person making the change? JCT, NEC, CIC all deal with IPR differently

4. BIM-specific #warranties and #indemnities can be used to transfer risk e.g. designer warranting compliance with applicable #BIM protocols and indemnifying for failure to do so – but then consider limitation of liability clauses

5. Insurance – Does parties’ PI insurance cover BIM related claims? I’m not aware of any market-standard #BIM exclusions, but clients may wish to make coverage an explicit requirement

6. Any other risks identified through asking questions at Appendix 4 of #winfieldrock report!

Conclusion – education is needed across #construction industry, clients to lead #culturechange, #SMEs to encourage and enable investment and takeup, #lawyers to be able to assist their clients (wherever they are in project supply chain) – assisting including ...

... asking Qs, opening up issues to be considered - #construction #lawyers must be proactive not reactive – join @BIM4Legal, educate selves on tech issues, ensure drafting achieves what clients actually want (we can't tell them what they want!), provides protection where needed