There is less than a year left to go until the Government target of April 2017 for requiring public sector projects to adopt a BIM Stage 2 approach. Caroline Earnshaw, associate, BTO Solicitors’ construction and engineering team, reflects on the concerns being voiced by members of the professional team at this time, design liability in the world of BIM and drafting considerations.
WE are heading towards a digital built environment and BIM is very much a part of this journey.
It is widely agreed that adopting a BIM approach will improve the construction process and deliver value. Through collaborative working and structured information sharing, BIM will drive out inefficiencies and seek to promote sustainability, not just at the start of a project but for the whole life cycle of a development.
The Scottish Government’s target date by which all public sector projects are required to adopt a BIM Stage 2 approach is April 2017. While we are being led towards BIM models in the public sector we are also seeing their use (to varying degrees of sophistication) in the private sector too. I can only think that this trend will continue.
April 2017 is fast approaching; at the time of writing we are eagerly anticipating the publication of the Government’s draft guidance with the final guidance scheduled to come out early in the autumn following a consultation period. This will give those of us who have an interest in the ‘nuts and bolts’ of BIM Stage 2 implementation further food for thought. BIM therefore remains something of a hot topic.
BIM is not without its critics. For a start there are concerns that requiring advanced stages of BIM in projects may disadvantage SMEs because of the costs involved.
The initial and ongoing costs of upgrading hardware, purchasing new software and the necessary training may be significant and are coming at a time of economic uncertainty.
However with the efficiencies that BIM promises the pros are increasingly seen as outweighing the cons and to a certain extent the perceived inevitability of having to use this process means many involved in the construction industry are accepting these costs as part and parcel of building in this modern era.
One of the most common queries I am asked about is allocation of risk and design liability when using a BIM Model.
BIM is intended to take the risk out of projects but it’s clear from the type of questions I am being asked that consultants, in particular architects, have their concerns.
There are worries around the blurring of lines between exercising professional standards of duty of care and fitness for purpose.
Where does responsibility for design integration/coordination and clash detection start and end? It is clear that satisfactory wording needs to be incorporated into appointing construction and engineering contracts and insurance provisions considered carefully with legal advisers and insurers.
Efficient drafting and considered use of protocols can give more certainty and a degree of comfort to professionals on this point. I think it is also worth remembering that Stage 2 BIM is a 3D environment with information (graphic and non-graphic) being held in separate discipline BIM models.
We are not yet dealing with the single fully integrated model envisaged by the later BIM stages. The apportionment of responsibility for projects adopting a Stage 2 approach in reality may not be that different to the traditional approach being taken at the moment.
Going forward project insurance will almost certainly play more of a role and will change the landscape even more, but that discussion is for another day.
There are also concerns relating to intellectual property rights. BIM is underpinned by a sharing of information; it requires collaborative working.
While this way of working may be embraced in theory, individuals do want to protect their intellectual property rights and limit liability arising from the use of ‘their’ information.
Again careful drafting is needed to address this issue and in particular care needs to be taken to understand the various responsibilities and the interface between the protocols that are being used and the appointing construction and engineering contracts.
Adopting a BIM approach has its challenges. The process involves changes to the contractual frameworks that we are used to using, and to attitudes and the way clients and their professional teams work together to deliver projects.
It will take time for us working in the industry to adapt to these changes. Change and uncertainty go very much hand in hand.
The concerns I have highlighted in this article can be rationalised with a little further thought; that is not to say we should dismiss them out of hand but we should evaluate them properly and seek to address them.
I do think it is right for professionals to carefully consider their risk profile for projects where a BIM model is being used and for them to ensure that they do not sign up for more than they have bargained for, but at the same time we should not seek to stifle a BIM approach with overcomplicated unnecessary drafting.
As is often the case, a balancing act is required.
