A LEADING LAW FIRM WITH A APPROACH Contractual and procurement issues in the run up to 2016 Glasgow Caledonian University – 4 October 2012 Simon Lewis, Partner, Construction
Introduction Context: • Increasing use of BIM across all construction sectors • Increasing awareness of what BIM means and its implications • BIM Working Party strategy paper of March 2011 • Suppliers to Government Estate to operate at level 2 by 2016? • Integration of BIM protocols with existing contract families • Sector specific developments
Introduction What next? • Work streams derived from Working Party report: the BIM protocol. • What will the BIM protocol look like? • The US approach • The UK approach • Contractual issues • Looking ahead
The BIM protocol: the US approach • ConsensusDOCS • AIA • Ohio BIM protocol • Penn State Project Execution Planning Guide
ConsensusDOCS – 301 BIM Addendum • Does not require a general restructuring of contractual relationships • A “horizontal” contractual arrangement • Central document: the BIM execution plan. To be agreed within 30 days of the execution of contract between owner and A/E • Involves all project participants • Requires employment of BIM Information Manager paid for by the owner • Can be used as a contract document or not
ConsensusDOCS – 301 BIM Addendum BIM execution plan contents include: • Contact information for each participant • What models are to be created, purpose and which participant is responsible for each model (federated models) • A definition of which design models (if any) shall not constitute contract documents • Spatial portions or areas of the project to be modelled in each model • Expected content of each model and required level of detail at various project milestones
ConsensusDOCS – 301 BIM Addendum BIM execution plan contents include: • Procedures and protocols for submission and approval of models • Contributors’ dimensional accuracy representation (level specified) • Establishment of common coordinates system, conventions as to units, conventions for defining critical dimensions and modelled content • File format to be used and file naming and object naming conventions, file structure and software to be utilised • Interoperability issues • Any changes arising to governing contracts or others relating to BIM-related compensation and costs
AIA BIM Protocol Exhibit E202 • Separates out process of using BIM, levels of development (LODs) and reliance for each Model Element • LODs provide specific content requirement • Five increasingly detailed levels of completeness • Recognises current use of a number of models (federated models) • Tabular approach – LOD for each Model Element in each phase • Defined responsibility for each Model Element Author and limitation on reliance by others • Another “horizontal” arrangement
AIA BIM Protocol Exhibit E202 Levels of development: – 100: overall building massing indicative of area, height, volume, location and orientation in 3D or represented by other data – 200: model elements modelled as generalised systems or assemblies with approximate quantities, size, shape, location and orientations. Non-geometric information may also be attached – 300: model elements are modelled as specific assemblies accurate in terms of quantity, size, shape, location and orientation. Non-geometric information may also be attached
AIA BIM Protocol Exhibit E202 Levels of development: – 400: model elements are modelled as specific assembles that are accurate in terms of size, shape, location, quantity and orientation with complete fabrication, assembly and detailing information. Non-geometric information may also be attached – 500: model elements are modelled as constructed assemblies actual and accurate in terms of size, shape, location, quantity and orientation. Non-geometric information may also be attached
State of Ohio BIM protocol Main features: • Uses a Model Manager – assumed this would be the architect at least through design and construction phases • Anticipates four model development categories which are then developed through the AIA LODs - the tabular approach • Expects the BIM execution plan to be signed up to by all parties within 30 days of the contract • Assumes that the use of BIM on a project should not result in increased fees. BIM deliverables at the minimum levels of development shall be included in the basic fee as negotiated (reflects experience noted in NBS BIM report of March 2011)
Penn State Project Execution Planning Guide Requires a BIM execution plan which includes: – Overview information – Project information – Key project contacts – Project goals/BIM objectives – Organisational roles and staffing – BIM process design – BIM and facility data requirements – Collaboration procedures – Model quality control procedures – Technology infrastructure needs – Model structure – Product deliverables – Delivery strategy/contracts
The UK approach: the CIC model • Draft BIM Protocol includes – levels of BIM maturity – BIM standards and classifications – project stages and BIM-enabled information drops – model objects and model configuration management. – roles and responsibilities include information manager, design manager, model content originator and authorised content user • Details of the extent of the BIM enabled information requirements at different project stages include the following: – definition of required LODs – formats and exchange standards to be used – defined uses for the information and authorised users – adopts the tabular approach
The UK approach: the CIOB contract for complex projects • Clause 9 of the contract deals with BIM • BIM to be prepared in a Common Data Environment • Adopts the tabular approach: Appendix C contains tables for design stages/levels of development and design contributors and design elements • Caters for a situation where the Contractor is required to prepare a BIM model for the whole of the works, or alternatively where the contractor is required to make a Design Contribution to a BIM model prepared by or under the direction of the Employer
Contractual Issues • Nature and extent of design input • Limitations of liability • IP/ownership issues: who owns the model?
Design input • At level 2, each party’s design input is defined and limited • ConsensusDOCS: if a design model is a contract document, a participant may rely upon the dimensional accuracy of that model only to the extent expressly stated in the BIM execution plan • AIA BIM protocol: defines responsibility for each Model Element Author and limitation on reliance by others to specific LODs. The tabular approach • State of Ohio BIM protocol: adopts the tabular approach • CIC draft BIM protocol: adopts the tabular approach • CIOB complex projects contract: also adopts the tabular approach
Limitation of Liability • ConsensusDOCS: design limited as previously described. In addition each party waives claims against the other parties for consequential damages arising out of or relating to the use of or access to a model. Includes damages for loss of use of the project, rental expenses, loss of income or profit, costs of financing, loss of business, principal office overhead and expense, loss of reputation or insolvency • AIA BIM protocol: limits design liability as above. Any use or reliance on a Model Element inconsistent with the appropriate LOD is entirely at that party’s risk. Further, that party indemnifies the Model Element Author from any claims arising out of such unauthorised use
Limitation of Liability • State of Ohio BIM protocol: Contractor required to indemnify the relevant parties from all claims etc arising out of or related to the contractor’s or any other person’s use of electronic files • CIOB complex projects contract: Contractor indemnifies all other design users against any liability whether direct or consequential arising out of or in connection with the contractor’s design and is obliged to notify the contract administrator and Design Coordination Manager of any clashes, potential clashes, or inconsistencies between the Contractor’s design and that made by any other Design Contributor (where Contractor is contributing to a model) • Where Contractor prepares its own model it remains responsible for the integrity of that model throughout
Limitation of Liability • CIC draft BIM protocol: Save as expressly provided in the information plan, no project team member warrants that any electronic data delivered to the information manager or any other party is complete, technically accurate, free from defects or suitable for its intended use. Clause to be developed further
IP/Ownership issues • General approach is to extend a limited, non-exclusive licence to use each party’s contributions to the model for project purposes only. State of Ohio BIM protocol requires each project participant to indemnify the others in relation to IP. User of the data is responsible for verifying the accuracy of the digital representations and that their software did not corrupt the information during the transfer process • Generally, the Employer owns the model or the IP rights are intended to vest ultimately in the Employer at the end of construction period
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