Building Information Modelling (BIM) – A New Method of Project Delivery but a Minefield of Potential Legal Issues?

Abstract

Building Information Modelling (BIM) is a revolutionary method of project delivery that is becoming common throughout the world. BIM is a method of project management, which attempts to encapsulate multiple facets of an engineering project in one self-contained computer programme, that all parties have access to in order to manage and maintain the project for potentially its whole of life. There are a number of reported benefits of BIM in the literature. It is natural therefore for facility owners, particularly government entities, to want to take advantage of these potential financial benefits by implementing BIM on their projects. So, while the demand is high for BIM from owners, the implementation aspects of BIM are lagging behind. This is largely due to a number of unresolved issues such as (1) confusion with the adoption of " standardized " BIM computer programs; (2) undefined methods for managing the relationships and scope of works between the participants; and, (3) unsatisfactory contractual documentation. The most important of these is the contractual aspect, as the contractual documentation on a project is quite possibly the most important part of the entire project! There is of course an awareness of this issue and various associations around the world are developing tailored BIM contract documents, for instance the American Institute of Architects (AIA) is creating the " Digital Practice Documents " for BIM projects, and The Australian Institute of Architects and Consult Australia (AustIA/CA) has developed the " BIM in Practice Guidelines ". Despite best attempts to develop what appears to be a legally sound contractual document, the method by which contracts become user friendly is the process of legal challenge. The Australian Standards suite of construction contracts such as AS2124 and AS4000 are constantly being refined as matters under dispute present to court. As a result of a court finding, the relevant clause is then modified to avoid that particular dispute arising in the future. The issue with BIM projects, is that with a "brand new" type of contract, such as that for BIM, one cannot know what clauses are sound and which are not. In effect, these BIM contracts will follow their predecessors, such as AS2124 and be subject to many forthcoming years of legal challenge. At this point, it should be noted that due to the infancy of the BIM contractual refinement process there are relatively few cases so far. There are a few main areas that have already been identified as potentially going to be subject to legal challenge, including: confidentiality (document control) and intellectual property; and liability/negligence and insurance issues.