A REVIEW: BIM IN PRACTICE - Legal & Procurement

The Australian Institute of Architects and Consult Australia recently released a group of documents under the title "BIM in Practice".  The documents are really discussion papers, and anyone seeking instructions on how to do anything will be disappointed.  But they are very good discussion papers, and well worth a read.

There are four working group sections:
L - BIM, Legal & Procurement
P - BIM Management Plans
O - BIM Outreach
E - Education

Each is divided into multiple documents of only a few pages, making them very easy to digest. There is good consistency across all sections, avoiding contradictions.  Although by the nature of its structure there is some duplication.

The Australian Institute of Architects and Consult Australia concurrently opened a web site, BIM/IPD[AUS]  (http://www.bim.architecture.com.au/) which contains these documents and links to other resources.
They would like your comments, and provide a comments section on the Resources page.

To me the real power of these documents is the wide range of contributors. Each workgroup section had multiple contributors, at least eight, from a cross section of the Australian building industry. It pretty much represents current thinking about BIM by BIM experts in Australia.

Which is timely, because I believe we need a more robust debate on BIM and on how it may impact on AEC firms. So my posts are not so much about what is in these documents, as what is wrong (in my opinion) and what is missing. But please keep in mind that I agree with the vast majority of what they contain, and that my aim is not to denigrate this outstanding effort.

To summarise my overall conceptual concerns:
A utopian future is being used to avoid dealing with real, current problems and issues.

IPD and the single, unified data model accessible to all are future ideals that would solve a lot of problems. But they don't exist now, and may never be widely used.

The role of clients in BIM is completely misguided, and in my view dangerous.

the assumption that all clients will eventually be asking for "BIM projects" is delusional. Encouraging clients to involve themselves in what is essentially internal business processes of project team members is dangerous.

Not enough thought is being put into where risk and responsibilities should lie in BIM projects.

current practice of providing information on a "no responsibility" basis forces the users of that data to ensure it is adequate for their purposes. They are best placed to do this as they know what they need. Current thinking around BIM doesn't have a robust, equivalent replacement.

BIM Management Plans (BMP) as currently envisaged are confusing and unworkable on real projects.

besides embedding the above problems as core assumptions, current BMPs are not clear on some critical defining information, yet still include information irrelevant to BIM.

This post is about one workgroup - L - BIM, LEGAL & PROCUREMENT.  I'll be posting comments about the other workgroups over the next few weeks.

L - BIM, LEGAL & PROCUREMENT.

All directors or managers responsible for client agreements should read this document. As mentioned above, it won't provide answers, but does flesh out a lot of issues.

The document recognises that other agreements (such as a BIM Management Plans) may alter contractual obligations. The US AIA 203 document also takes this approach. It is suggested that construction contracts could be altered via variation clauses, but I believe misses the point that under BIM, Service Agreements must have similar, easy to invoke provisions, to deal with this required alignment.

Besides the obvious difficulty keeping the two sets of documents aligned, another problem is the BMP may reference parties without any legal relationship. One possible way around this is have deliverables to 3rd parties defined in Service Agreements. For example, an agreement between the client and architect might include deliverables to the client's (separate) FM service provider.

A discussion of the principle that "those best able to manage risk should be the party responsible" would have been useful.

As would discussion about consultant teams working directly for contractors, as in "novation" type contracts. Whereas a client's agreement might only cursorily mention BIM, contractors may insist on quite onerous BIM services to assist (or indeed supply) their own BIM processes.

L1 - BIM & INTELLECTUAL PROPERTY

It would have been worth pointing out that in some areas risk (and therefore responsibilities) may be a more important consideration than IP.  For example, if you claim IP over your components (described as "smart objects" in the document), is there an expectation that you are therefore responsible for providing all required information within them - FM data, costing data, ordering data?

The ramifications of the different formats data may be provided in is well explained. And it seems to be tending towards recommending not issuing native authoring format files (e.g. Revit,  ArchiCAD, etc.).
The need to issue these types of files is lessened with non-authoring formats such as DWF, Navisworks and IFC that can contain BIM information. Which means that information can still be extracted by 3rd parties for their BIM own purposes.

A discussion of the conditions under which authoring models could be provided to others would have been helpful. The reality is this will happen (as happens now with CAD files), so there really needs to be discussion around how this might be done without increasing risk to the author.

L2 - PI INSURANCE

A recommendation is that the PI insurer be informed if "BIM systems" are being used.  I would have thought it more relevant to inform them if contractual agreements have BIM requirements. After all, "BIM systems" can, and are, being used to create only traditional drawings.
I assume insurers want to know what the risks are, so it is important that risk is identifiable. This is where BIM Management Plans (BMP) can help. Although I do wonder if Model Progression Specifications or LOD tables will stand up as proof of risk allocation. Are they looked upon as legal documents by those filling them in?

What happens if some parties contributing to the BIM, which can include contractor, shop drawers and manufacturers, are not covered by PI insurance? It is probably unrealistic to assume every contributor will have PI insurance. Which means there needs to be a way to deal with the responsibility for those contributions.

In BIM loss of documents means loss of data, not paper. It is would have been worth noting inadequate in-house IT management may create difficulties in making a successful claim.

It is disappointing that only two alternatives are offered for sharing of risk; IPD or current practice. IPD will never be used on the majority of building projects, and current practice is clearly inadequate for BIM projects.  How about a third way?

I think it was mentioned in another section, but the fact that the definition of "reasonable professional" is changing with take up of BIM has relevance to PI insurance.

This document has good examples, although not enough, of potential problems with BIM.  BIM methods are better than current methods, but I don't think glossing over potential problems is helpful. Interestingly one of the issues raised, undertaking work outside of one's normal scope, used an example - contributing to estimating - that is put forward as BIM practice in the document on Quantity Surveying (which will be a subject of my 3rd post).

A good example is given about warranting models. It relates to models used directly by contractors on site, for example for laser setouts.  This is good, productive practice, and exploring ways to allow it to happen, rather than just blanket "don't offer any warrantees", is helpful.

It is reasonable to suggest that PI insurers will require information about how a BIM project will be undertaken, including roles and responsibilities.  But insurers need to understand these may change over the course of the project, as different parties become involved. How will this be handled? Should the PI insurer be asked for comment before changes are made to the project's BIM Management Plan (BMP), or is it just issued to them whenever it is revised?  And if comment is required, does that mean comment from the PI insurer of every party to the BMP?

L3 - STAKEHOLDERS RESPONSIBILITIES

"The (BIM) model" is referred to with no definition what that is. I constantly see this in BIM documents.  The assumption appears to be that BIM means a single unified database. But the reality is BIM is usually undertaken using multiple BIMs that can be linked together. There are actually multiple versions of "the model". The architect has what they think is "the model" (e.g. a  linked Revit file), the contractor has their version (e.g. a linked Navisworks file). This leads to all sorts of confusion, people thinking they are talking about the same thing when they are not. I don't believe this issue is intractable, it just needs to be addressed.

Although defining deliverables is good practice, "Models suitable for . . " is not precise enough. Particularly when the author has no expertise in the purpose the model will be suitable for (what do architects know about how a QS or contractor costs a building?).

One of the problem with Model Progression Specifications (and LOD tables) is that software can limit what can be separated. What do you do when electrical engineer is responsible for specifying GPOs, but architect is responsible for precise location? These types of documents (in their current format) do not necessarily overcome all issues of specifying responsibilities.

The idea of in-house BIM guidelines is good. It is better if parties define what they will provide rather than just react to requests. It prevents unrealistic expectations and form basis for claims for additional work. This should be pursued further, for example the RAIA could develop what are reasonable BIM deliverables for architects to provide.

Good section on some of the possible misuses of BIM. For example a contractor using clash detection to identify potential future variations. All can be overcome, but must be recognised first. Should be more of it, and less BIMwash.

As mentioned above, it would have been helpful to have a discussion of the doctrine that those best placed to for-fill responsibility (and manage remedial action) be the party responsible. The author is not necessarily the best party to be responsible.  There is little benefit making the architect (or ceiling supplier) responsible for ceiling hanger positions just because they are engaged to place them in the model, if they don't have direct access to services models or clash detection functionality.

L4 - VIABLE OPTIONS - ENCOURAGING COLLABORATION & "NO BLAME"

Collaboration agreements try to get parties working better together, but are ultimately unenforceable as agreement contents are so subjective; "collaborative values"; "common sense of purpose"; "align behaviours".
And as mentioned in the document, they will never work unless there is buy-in at senior levels.

Collaborative agreement workshops are insulting to most participants - we work that way already.
A more robust approach is collaboration through mutual benefit - you scratch my back and I'll scratch yours. Just define which part of my back for which part of your back.

Early supply chain engagement will only work if the architect maintains their role at early stages, and is not used by clients to reduce cost and risk by reducing design opportunity and excellence. Refer to my earlier blog post: Integrated Project Delivery - Bad News for Architects?

Alliance contracting (essentially IPD) is great - but of limited use. As expressed in the document it is used on "large projects for government clients". But it is too often put forward as THE solution to utilizing BIM. It is not, let's stop spending so much time promoting and discussing it. Large projects with large clients and large consultant firms can afford their own legal advice.

The suggested two staged agreement is an excellent idea. Agreement setting out expectations, followed by agreements with particulars.

CONCLUSION

Don't let my comments put you off reading these documents. There are many good and useful things in them I haven't mentioned. But don't be afraid to question, both these documents and my contribution.
If you have a view please add your comments to by blog, or go to the BIM/IPD[AEC] resources page and add your comments there.

My next post will be on BIM IN PRACTICE -BIM Management Plans.