BIM and Legal Contracts: The Winfield Rock Report Explained

"The Project shall be delivered to BIM Level 2"

WE have all seen the above or equivalent in contracts in recent years. But what does this actually mean and do all parties to a contract think that it means the same thing?

May Winfield and I sat down last summer to discuss this all too often seen lack of clarity and decided to do something about it and the other legal and contractual uncertainties surrounding building information modelling (BIM).

"The Winfield Rock Report" was born.

Launched today at BIM Show Live, The Winfield Rock Report co-authored by May Winfield and myself is a comprehensive state of the nation’ review of BIM legal and contractual issues among the legal community and those who instruct them.

The research for this report began with an online survey. 158 participants provided feedback as to the use of BIM on projects and the documents used to facilitate this. The authors then 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.

Above: An example UK BIM Level 2 project - part of the graphical information model for Edinburgh's Royal Hospital for Sick Children and Department of Clinical Neurosciences (image courtesy of HLM Architects).

One of the most interesting findings was that each of the industry recognised BIM experts interviewed for this Report provided a different definition of BIM and of BIM Level 2. No two people gave the same response. We found that the answer to the question 'What is the definition of BIM Level 2?' depended greatly on the viewpoint and experience of the person answering the question.

The main consensus was that the definition of the level or even the term BIM itself generally needed to be assessed on a project by project basis and incorporated into the contract accordingly.

RELATED: BIM FOR BEGINNERS

Looking next at the area of BIM-applicable standards, whilst we acknowledge the importance of other standards, BIM has undoubtedly been shaped in large part by the development of the PAS 1192 suite of standards.

Our research showed an inconsistent approach to application of the standards with some interviewees experiencing the ill effects of an overly zealous and rigid interpretation whilst others felt the suite was being used too flexibly with some project participants picking and choosing the standards that suited.

Again it was deduced that the most pragmatic way to utilise the 1192 suite of documents was to consider their use and application on a project by project basis.

The Report also considers BIM in standard form contracts and BIM specific documents. BIM specific amendments have been included in standard form contracts (notably by the JCT and the NEC in recent years).

In the Report, we provide a high level review of these amendments before reporting on the industry's view of the changes made.

A helpful review of the BIM specific documents (Employers Information Requirements (EIR), BIM Execution Plan (BEP) and BIM Protocol) currently in use in industry is also provided, followed by an analysis of the interviewees's complaints, comments and suggestions for improvements in this area.

The Report goes on to examine the perception of the level of BIM knowledge/awareness within the legal community.

It is fair to say that the general view was that the knowledge/awareness within the legal community is not high. A need for greater understanding of the processes and improved collaboration with their technical colleagues was spelt out as being required from lawyers tackling BIM projects.

Above: As part of the Report's research, 158 participants provided feedback on the use of BIM and associated documentation on projects.

We conclude the report with some suggestions of how to move things forward, notably a checklist of questions aimed at lawyers new to BIM and the founding of a BIM 4 Legal community group.

It was really interesting to find that almost everyone we approached for interview felt that they were not qualified enough on the subject of BIM to provide any meaningful contribution. This was a complete fallacy but suggests that there is a prevailing misconception in our industry that everyone else is a BIM-expert.

We have found it very refreshing to see lawyers in particular coming together on this project and feel this displays that, whilst maintaining client confidentiality, lawyers can in fact collaborate and work together for a common purpose.

The Winfield Rock Report was co-authored by Sarah Rock and May Winfield.

It is available to download from today. Get your FREE copy here.