A client recently asked me for a view on the increasing prevalence of disclaimers in tender documents with regard to the use of BIM models, notwithstanding that the client had mandated BIM use.
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Examples included: “Model content is not verified and cannot be relied upon for accuracy.” “BIMs are for information only and 2D graphical information (eg drawings, schedules and specifications) issued with the tender will take precedence.”
My thoughts on this were all well and good, but they were just my thoughts and clearly there would be many different views out there. As a fan of social media, I thought this would be a good subject to crowdsource some responses, so I posted a question on a BIM discussion board. Despite a bit of ranting here and there, the post generated a plethora of informative comments from a wide range of contributors, including engineers, architects, digital strategists, BIM managers and even some fellow lawyers.
My post asked about the use of disclaimers by clients with regard to use of BIM models by their contractor, while at the same time mandating the use of Level 2 BIM by that contractor. Among the responses, a few themes did stand out.
Many of the disclaimers encountered in the field seem to originate from professional design practices, generally to protect against a concern that their models and information will be used for purposes for which they were not intended. Several designers pointed out that they often “overdeliver” – providing information in BIM models when models are not a deliverable, or where the relevant contractual documents, protocols or execution plans are not in place.
They also correctly point out that the designers are usually the first professionals involved in the construction process. This is perfectly reasonable concern and, as one contributor noted, is “no different to stamping drawings ‘Not For Construction’.”
That said, in the context of a project where BIM is mandated by the employer, the purpose for which information can be used really ought to be covered in the BIM execution plan or BIM protocol.
As that contributor went on to say: “Until the industry as a whole is willing to use information only for what it was issued, things won’t change. Suggesting that parties want to protect themselves in an environment where other parties don’t play by the rules is at odds with the purpose of BIM and misses the real problem. Collaboration and co-operation require trust. The Level 2 PAS 1192 process creates an environment where you can trust other parties because fair behaviour is contractual obligation.” And quite right too, but is this happening?
This inevitably leads us to the role of the client. If the client wishes to use BIM on his project, he needs to be dealing with this stuff at the outset, so that designers do not need to caveat their documentation and everyone knows which information can be used when and for what.
This is pretty much the raison d’être for the CIC BIM protocol. Employers need to deal with BIM use, protocols and responsibilities in their contractual arrangements at the start of a project.
But are employers doing this? The popular consensus was that they are not. Nor was it felt that there is a great deal of clarity in Employer’s Information Requirements (EIR) documents, or as one respondent put it: “There is often a lack of EIRs, full stop.”
The discussion then moved on to existing forms of construction and engineering contracts. One contributor noted that current forms of contract “do not cover the use of BIM… and vary between different team members as to what they have to deliver”. This is essentially true, albeit with one notable exception in the form of the barely used CIOB Complex Projects Contract.
Of course – and as was pointed out in the discussion thread – this is “directly at odds with the BIM Task Group’s statement that Level 2 process should be achievable with current contract forms supplemented by the CIC BIM Protocol”. As the respondent said, “The reason it breaks down is because the controlling party, often the main contractor, chooses to make things up as they go along rather than taking the time to understand and use the Level 2 process, resulting in the a sort of ‘Level 2 lite’ that allows the risk to be skewed in their favour and current adversarial working practice to continue.” Ouch.
While it’s true existing contracts tend not to specifically deal with BIM right now, that is not to say that they won’t do in the future. Indeed, I’m aware that several of the publishers of standard forms are actively looking into ways of creating more collaborative contracts which will almost certainly include much more detail with regard to BIM.
It is an inevitability that, with the continued and better use of BIM in the industry, contracts will need to reflect the working practices of what is likely to be a more collaborative and connected construction team. It’s still in the future, but watch this space, as change is afoot. And as the discussion – and the original query – suggest, the industry could benefit from contracts in black and white rather than disclaimers that paint things a wishy-washy shade of grey.
Chris Hallam is a partner at Pinsent Masons specialising in infrastructure, construction and engineering transactions
