Presentation 23 March CIBSE 2016 Tim Willis

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1 Presentation 23 March 2016 CIBSE 2016 Tim Willis

2 Managing Risk in BIM Managing Risk in BIM Contract problems The CIC (BIM) protocol Process problems Standard of care / Scope of services Common Data Environment Intellectual Property

3 Building Information Modelling (BIM) RIBA and others have adopted the following definition: Building Information Modelling is digital representation of physical and functional characteristics of a facility creating a shared knowledge and resource for information about it forming a reliable basis for decisions during its life cycle, from earliest conception to demolition. UK government has indicated that Government projects will need to be carried out using BIM level 2 by April 2016 and validated by October 2016.

4 Strategic Implications of BIM New roles that break down the existing divisions and deliver a unified plan of work and scope of services. Greater interdisciplinary collaboration. Buildings treated as products. The culture change envisaged by Latham and Egan will move forward with better integration of roles and information. The government s vision goes beyond adopting some new software and is concentrating on the production of reliable information for key decision making. Must learn to walk before we can run BIM level 2

5 What is BIM level 2 PAS Fundamental principles for level 2 a) Originators produce definition information in models they control b) Clear definition of employer s information requirements c) BIM execution plan d) Provision of a single environment to store shared data e) Data delivered to client in COBIe format

6 Background and current trends Government wants all central government procured projects by 2016 to be BIM level 2 enabled. It will be a pre-requisite at tender stage Doing this by providing the incentive and also the toolkit to achieve this The industry s response Clients: MOJ Cookham Wood Project NHS Contractors - - Some have actively embraced the process (BIM lonely) Consultants - A question of understanding the full BIM process

7 Background and current trends Software developers and the tier 1 supply chain have embraced BIM as part of the construction process 3D visualisation Clash detection Construction sequencing Record keeping Cost analysis The tier 1 suppliers not are not being driven by employers demanding BIM but by the desire for competitive advantage and cost/ quality/ productivity gains

8 Background and current trends Tier 1 suppliers do not limit their process to BIM level 2 Where the BIM process is defined by tier 1 contractors they are not de-risking the process for the supply chain The CIC protocol is not adopted in such cases There is no standard document that is used for BIM enabled contracts There is considerable diversity of approach among the existing standard forms of contract as to how BIM is documented and the extent to which existing documentation needs to be modified for the process

9 Risks in BIM What kind of risks Contract problems The CIC (BIM) protocol Process problems Standard of care / Scope of services Common Data Environment Intellectual Property

10 Contract Problems Ad Hoc BIM BIM process used as a part of the project, it is discussed and implemented in an ad hoc way but not documented it all goes wrong

11 Contract Problems Employer no specific information requirements but states The Contractor shall deliver the Project and the Models to BIM Level 2 Tier 1 contractor produces a detailed BIM execution plan as part of the main contract and sends that to the employer. It is not defined as a contract document no reference is made in the subcontracts. There is a general requirement in the subcontract to comply with the main contract. The subcontracts contain standard design drafting that does not refer to the BIM execution plan and standard copyright licensing solutions

12 Contract Problems Subcontractor s design consultant cannot provide the information in accordance with the BIM execution plan Contractor must accept 2d or delay the project and claim his liquidated damages from the subcontractor

13 Standard Contracts NEC Z clauses April 2013 How to use BIM with NEC 3 Contracts April 2013 JCT - Public Sector Supplement JCT BIM Guide 2016 More collaborative projects PPC200 Appendix 10 (BIM Coordinator) Alliance contract CIOB Contract for use with Complex Projects

14 Standard Contracts JCT Constructing Excellence NEC Early Contractor Involvement

15 Appointment Documents RIBA plan of Work 2013 ACE short form of agreement Clause 10 Building Information Modelling The Client and Consultant shall comply with their respective obligations set out in any BIM protocol referred to in the Schedule. The parties shall have the benefit of any rights granted to them in the protocol and of any limitation or exclusion of liability contained within it.

16 Problems with standard contracts Diversity of solutions Most of them not designed specifically for BIM CIOB complex projects contract the most BIM enabled but has other features which are radical - a Time Manager It leaves open the question of the BIM rules and refers to a default protocol which is the American Institute of Architects document. BIM drafting April 2013 pre-dates the government work on BIM the CIC Protocol To seek to provide a standard response the government has produced standard documentation and as part of that the CIC BIM protocol

17 CIC BIM protocol The Employer completes the Protocol in connection with all direct appointments and contracts (Project Agreements) to be entered into with Project Team Members. Project Team Members any person having responsibilities in relation to the production delivery and or use of the Models. The Protocol is incorporated into the appointment documents and building contract. Project Team Members required to incorporate the Protocol in contracts further down the supply chain. The Protocol addresses specific obligations associated with the production of the Models and their use. Obligations associated with design deliverables will remain in the wider agreement. Employer to ensure that there is always an Information Manager appointed.

18 CIC Protocol (first edition 2013) ( Suitable for BIM Level 2 How does it work? Incorporation by reference Takes precedence over other terms It provides a mechanism for the project team to produce specific information at specific times to set standards (PAS ) (data drops) Appendix 1 Model Production and Delivery Table Appendix 2 Information Requirements Contains extensive limitations of liability and exclusions to protect the supply chain

19 NBS Toolkit The toolkit allows you to specify the roles being undertaken by the team and who must deliver information at what stage. The definition of information refers to level of detail which itself is broken down to level of detail and level of information Information is delivered as BIM objects which can be generic or specific The source of the BIM objects The intention is that the manufacturers of products will provide the content for BIM objects The goal is to try to achieve a universal standard of definition for BIM objects so that specifiers can source BIM objects and designers can literally drag and drop objects of the desired level of definition and level of detail into a model

20 Legal issues to consider CIC protocol separates design responsibility from information management. i.e. clash detection is not the Information Manager s responsibility. The CIC protocol also provides a different standard for delivery of BIM information to that required of design. The obligation to provide BIM information is one of reasonable endeavours and subject to matters outside of your control. Whether in the event of delay as a consequence of that would you would be entitled to any compensation would depend upon the drafting of the standard contract.

21 Process Problems In practise does the supply chain separate the production of BIM information and design information? It is not clear that these are separate procedures Even if they technically separate our contract drafting can mean that in practise they have at least to be running concurrently The protocol and other standard contacts envisage that in the event of discrepancies between the 2d information and the Model the Model will take precedence

22 The standard of care / Scope of services In the absence of any express drafting would a design and build contractor have an obligation to provide a Model that was fit for its purpose? Would the consultant be subject only to a standard of reasonable skill and care? Scope of services poorly defined requirements will produce disagreement over the scope of the appointment or sub-contract The law has developed content for the traditional roles in the absence of such case law how will we decide upon the content of new roles such as BIM Manager

23 Common Data Environment Content see PAS A single source of information for any given project, used to collect manage, manage and disseminate all relevant approved project documents for multi-disciplinary teams in a managed process Documents see BS1192; A1;2015 Reports, snagging lists, programmes, minutes etc Access Disclosure Data management protocol?

24 Intellectual Property CIC BIM (protocol) First Edition 2013 intellectual property rights - copyright remains with the author - licence given and received from the employer - team members cannot amend others work - the extent of the licence is potentially greater than the licence given in the context of a traditional construction contract - Permitted Purpose covers construction, maintenance and operation of the project consistent with the level of detail of the relevant model ( including a Model forming part of a Federated Model ) - Federated Model means a Model consisting of connected but distinct individual models - Employer and team members both represent that they have or will procure the rights to grant the licences or sub-licences - Does it deal adequately with IP rights of the federated model? - Does not deal with database rights

25 CIC Protocol Licence

26 BIM Objects and IP There are different routes by which your BIM Object may come into the market; Recent survey; own website third party hosting BIM Store, NBS BIM Library many others proprietary software It is at the point where the object is provided / downloaded that the user acquires its rights to use the object Those rights are governed by the terms and conditions of the service Where you are hosting your own objects you will have to set those terms and conditions Where you are using a third party, that will form part of the negotiation / agreement of using that third party

27 Third party hosting BIM objects Use and right to grant licences and sub-licences may be governed by their conditions 5. The non-exclusive licence 5.1 By accepting these Terms and Conditions, RIBAE grants you a non-transferable, non-exclusive licence to use the National BIM Library. Such use is subject to these Terms and Conditions. 5.2 You shall not grant sub-licences, in whole or in part, of any of the rights granted under these Terms and Conditions, or sub-contract any aspects of exploitation of the rights licensed to it, without RIBAE s prior written consent. Whether to grant consent or not shall be a matter for RIBAE s absolute discretion in all circumstances. 5.3 Subject to compliance in full with these Terms and Conditions, you may reproduce part or parts (related to individual BIM Objects but not a material proportion) of the National BIM Library either alone or in conjunction with your own material; for the purposes of your own personal use where that personal use is not for any commercial or profit making purpose; or for use by educational institutions and their students for educational purposes only; or for inclusion in any drawings or contract documents used or intended to be used in connection with a building contract where you are or may become a contracting party, or in connection with which you are engaged or may be engaged in the future by one of the contracting parties in a professional capacity; but not otherwise.

28 Contact Tim Willis Consultant d e Trowers & Hamlins LLP 2015 Trowers & Hamlins LLP is a limited liability partnership registered in England and Wales with registered number OC whose registered office is at 3 Bunhill Row, London EC1Y 8YZ. Trowers & Hamlins LLP is authorised and regulated by the Solicitors Regulation Authority. The word partner is used to refer to a member of Trowers & Hamlins LLP or an employee or consultant with equivalent standing and qualifications or an individual with equivalent status in one of Trowers & Hamlins LLP s affiliated undertakings. A list of the members of Trowers & Hamlins LLP together with those non-members who are designated as partners is open to inspection at the registered office. Trowers & Hamlins LLP has taken all reasonable precautions to ensure that information contained in this document is accurate, but stresses that the content is not intended to be legally comprehensive. Trowers & Hamlins LLP recommends that no action be taken on matters covered in this document without taking full legal advice. (c) Copyright Trowers & Hamlins July 2015 All Rights Reserved. This document remains the property of Trowers & Hamlins LLP. No part of this document may be reproduced in any format without the express written consent of Trowers & Hamlins LLP.

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