The Winfield Rock Report, prepared by May Winfield and Sarah Rock for the UK BIM Alliance, is subtitled "Overcoming the Legal and Contractual Barriers of BIM". It is a very welcome review of the present understanding of BIM legal and contractual issues among the legal community and those who instruct them. As such, I would recommend it to anyone interested in BIM, whether from a technical, contractual or legal aspect, as well as those who are instructing lawyers on projects that will utilise BIM Level 2. It is thorough, well-written and practical and aims to provide a way to assist the legal community in approaching the contractual issues raised by BIM at Level 2 in a constructive and collaborative way.
The Report is based upon an online survey together with a number of interviews with BIM experts, lawyers and clients. It assesses the impact of the use of BIM levels of maturity, how these are defined and how this terminology is used in the industry. At the end of the report there is a check list of questions designed to assist lawyers who are approaching this area for the first time in addition to the announcement of the launch of the BIM4Legal group.
One of the most striking findings in the Report was that every interviewee provided a different definition of BIM Level 2. This highlights one of the main issues which will have to be addressed if we are going to achieve consistency in the contractual and legal approach to BIM. BIM represents what is perhaps a unique intertwining of legal and technical issues which may have led lawyers in the past to think of the BIM Protocol and its associated documents as essentially technical sections of the contract that should largely be left to the professional team. This is, of course, not the case and a failure to address adequately the contractual issues raised by the use of BIM is storing up problems for the future.
The Report notes that the lawyers who are supposed to be drafting a clear contractual framework within which BIM operates are perceived as often having little grasp of the working of BIM projects and how obligations relating to the use of BIM should be integrated into the project documentation. To add to this, the full implementation and undertaking of BIM on a project requires not just an adjustment to the contractual terms and the proper incorporation of technical documentation but should also entail a change in the way the industry works. This is a significant issue in itself: proper adoption of BIM on the project should lead to more collaborative working, early contractor involvement and even, if a whole-life approach is taken to the use of BIM, early involvement of the facilities maintenance contractor in the development of the new build project given that BIM is applicable to the entire life cycle of a built asset. The legal framework will have to recognise and cater for this new approach.
The Report suggests that a way of dealing with these widely differing views about what "Level 2" means may be to stop trying to pin down this particular definition and instead to concentrate on the concept of "Digital Construction", recognising that too precise a definition simply risks misunderstanding. Every project is different so its precise requirements in relation to its use of BIM will also differ. Given that there is no universally accepted definition of Level 2, it is more important to concentrate on deliverables in the contract and to make sure that these are clear. In short, every party on the project needs to know what it has to deliver, what it can expect the other parties to deliver and when. The risks and obligations that surround this basic structure need to be spelt out very clearly. In the same way that the failure to define, say, "consequential loss" or "concurrent delay" in a contract is a recipe for dispute, the failure to define "Level 2" can only lead to misunderstanding and unnecessary time spent in untangling competing meanings. Better to avoid this difficulty altogether if possible.
It is important for lawyers to understand how BIM works, the function of the Employer's Information Requirements, the BIM Execution Plan and the BIM Protocol, and the underlying technical features of the use of the BIM model. In its early days BIM was driven by the software providers and this has perhaps meant that legal considerations have lagged further behind than they should have done. The Winfield Rock Report is very welcome guidance to the legal community, enabling the legal and contractual aspects of BIM to develop proactively and constructively, and the BIM4Legal group offers the legal community a way to show that even lawyers can get on with each other in the right circumstances.
First published in Building - 6 April 2018