A LEADING LAW FIRM WITH A APPROACH Contractual and procurement - - PowerPoint PPT Presentation

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
• wner
• 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
• n 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

• rientation. 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

• rientation 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

• nly 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

• r 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

• bliged 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

• nly. 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

Express obligations in contracts

• No amendments to head agreements anticipated by

ConsensusDOCS or AIA save for BIM-related compensation and costs (ConsensusDOCS)

• State of Ohio BIM protocol suggests model clauses to be added in

to the relevant contract documents

• CIC draft BIM protocol anticipates protocol incorporated into direct

agreements between employer and project team only and not down the contractual chain. Is this adequate? Compare with ConsensusDOCS

Express obligations in contracts

• Consider bespoke contract drafting and issues arising

– nature of express obligations to comply – is contractor obliged to procure other parties’ compliance? – priority of documents issues – is it necessary/advisable to repeat some of the protocol requirements in the main contract?

• These considerations will in any event apply to a professional

appointment, sub-contract or supply agreement

Express obligations in contracts

• JCT Public Sector Supplement – September 2011 and Scottish

Building Contract Committee Public Sector Supplement – November 2011

• Both suggest amendments to main and sub-contracts and provide
• guidance. Amendments provide for the inclusion of “any agreed

Building Information Modelling protocol” as a contract document. To be included in the ERs or other suitable contract document.

• Effect of document as contract document – duty on contractor to
• comply. No express duty on employer to comply with protocol, but

would be implied and if employer fails to do so, act of prevention?

Express obligations in contracts

• JCT/SBCC do not propose wording for BIM protocol. Develops on a

project by project basis?

• Need to amend contract to make it consistent with BIM protocol?
• Scottish Government approach to BIM: nothing specific on adoption

and implementation. Leave it to the market

Looking forward: other applications?

• Maintenance contracts?
• Refurbishment contracts?
• Smaller projects?
• What about the QS?

Looking forward: Level 2 to Level 3

• Integrated project delivery leads to alliancing or partnering

contracts?

• Insurers will not lead the way but insurance arrangements critical
• Promotes the “virtual company” approach
• Still some way from level 3, but change is inevitable. Getting the

contract right now avoids or limits the arguments in the future