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The Winfield Rock Report on BIM: Help your legal advisers help you

May 1, 2018

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The Winfield Rock Report, published in cooperation with the UK BIM Alliance, examines understanding of the legal and contractual issues surrounding BIM and aims to provide clarity so all parties know where they stand. Authors May Winfield and Sarah Rock discuss its key points

BIM is something that continues to permeate our industry, yet experience appears to suggest that the awareness and understanding of the legal and contractual issues of BIM is lagging behind. We set out to discover the truth about this perception, and how to help change the situation if true, in September 2017.

Our research consisted of an online survey, which received 158 responses on the use of BIM and BIM documentation. We also interviewed 44 key industry players, consisting of a mix of clients, contractors, consultants, academics and both in-house and private practice lawyers, to take a more detailed look at the current position. This all culminated in the publication of The Winfield Rock Report, in association with the UK BIM Alliance, launched at BIM Show Live 2018 in February.

As regards the legal community’s understanding of BIM, which catalysed our research in the first place, we discovered that the legal community (and their clients) are keen to know more and are increasingly aware of the need to refine their BIM knowledge to fully advise their clients. Equally, however, the feedback we received was that there are very few readily available resources on BIM that were both accessible for non-BIM-specialists (suggestions were that there was too much jargon!) as well as focused on the legal and contractual issues to overcome.

The Winfield Rock Report made two recommendations to progress the legal community’s BIM knowledge and understanding, to enable them to better support the industry in BIM-enabled documentation and processes.

The first is the establishment of BIM4Legal; a forum where the legal community can exchange ideas, gain knowledge and network with BIM specialists from the industry in a supportive and collaborative environment. The second recommendation, which we consider further in this article, is the introduction of a Legal Questions Checklist as appended to the report.

This checklist is intended to be used as a reference or starting point for legal advisers suggesting questions to initially ask when first instructed on a BIM-enabled project or contract. This checklist is necessarily non-exhaustive as BIM issues may be very project-specific but seeks to cover the main areas that should be considered (or at least to set the parties on the path to bottom out the BIM risks and aims of the client).

In drafting the checklist, we bore in mind that the legal adviser’s client may themselves be on a BIM journey and therefore may need some prompting to realise what their intentions and accepted risk allocation from BIM may be for a particular BIM-enabled project.

Split into three sections, the checklist therefore seeks to take the users or readers on a natural step-by-step journey along the main issues and risks that will likely prove relevant.

The first section deals with the BIM process. After all, as the saying goes, BIM is a process and not a software. The queries highlight the need to ascertain whether there are standard BIM processes that parties must be required to comply with, the deliverables and/or outputs expected from the BIM processes, and the allocation of responsibility for ensuring the processes are carried out as envisaged. A further series of questions tackles the CDE issues resulting in the (reportedly first) ‘BIM’ case, Trant v Mott MacDonald.

The second section turns to BIM documentation. As discovered during the course of our interviews and research, it is apparently not uncommon for BIM documentation to be incomplete, contradictory or missing, leading to potential confusion and avoidable misunderstandings.

The queries posed seek to remind the parties of the documentation that could and/or should be included and completed for a typical BIM-enabled project, including an EIR, BEP and BIM Protocol, and highlights ways of avoiding some of the potential confusions, such as using agreed terminology.

This section also seeks to highlight the need to ensure that the parties completing a BIM-capability assessment are in fact the ones that will be involved if the project goes ahead. The assessment forms may not contain such a requirement. We received accounts from some of our interviewees that the same BIM managers would be completing all the BIM capability assessments, yet those individuals actually delivering the project may not have matching BIM expertise.

The third and final section goes through some of the common project- or client-specific considerations that will impact the legal risks and contract drafting for BIM. Some of these issues may not occur at the initial negotiation or early project stages to those legal advisers and clients who are new to BIM but may cause complications later if not clarified. This includes consideration of whether there are particular security or confidentiality issues that require the BIM models and outputs to be handled and stored in a particular way and ensuring that all necessary disclosures have been made by both parties to their insurers to avoid inadvertent exclusion of insurance cover.

While this checklist is neither legal advice nor the panacea to BIM legal issues, we hope that it will prove to be an invaluable tool and reference guide for both the legal community and their clients from all facets of the industry to facilitate increased clarity of scope and risk allocation. If parties know where they stand from the outset and/or the documentation makes the position clear, this could avoid some expensive disputes that arise from differing expectations or misunderstandings – for example, simply because the person one reached an understanding/agreement with has since left the other contracting party and the contract documents do not reflect the terms agreed.

The Winfield Rock Report can be requested from: http://www.ukbimalliance.org/resources/request-acopy-of-the-winfield-rock-report/

Nothing in this article constitutes legal advice and the contents of this article is for information purposes only.

May Winfield