BIM - a key to risk reduction or building and remodelling legal and insurance risks? 30 April 2015 Andrew Croft Solicitor a.croft@beale-law.com Stephen Hargreaves Director shargreaves@griffithsandarmour.com

Legal Implications of BIM BIM should reduce clashes and promote collaboration, thereby increasing efficiency.... ........ but the use of BIM can have a significant impact on the rights and obligations of the parties on a Project and needs to be considered carefully. The insurance market’s views of BIM.

Strict Obligations CIC BIM Protocol does not include strict obligations. “The Consultant shall comply with the BIM Requirements” BIM Requirements are: not included; or “to be advised by the Project Manager”. Clarify these obligations before the Appointment is concluded.

Increased Standard of Care? CIC BIM Protocol does not increase standard of care in appointment. What is “reasonable skill and care” on a BIM project? Do you have a duty to either use BIM or advise that BIM be used? Resist a higher standard of care than reasonable skill and care.

Intellectual Property Rights The increased number of documents makes IPR (e.g. copyright) very important. Appointment should make clear to what extent: you retain ownership of your IPR; you can use IPR provided by or on behalf of the Client; and your IPR can be used (by the Client and others). Scope of any IPR licence should be carefully considered. On BIM Projects the right to revoke copyright for non payment may be a “big stick”.

Collaboration There should always be some collaboration. On a BIM project: More parties have access to documents through the “Common Data Environment”; Increased risk of another party using information for purpose not intended; and Increased risk of “scope creep”. Be clear how your documents can be accessed and used. Consider disclaimers. Each party’s scope should be clearly defined. As BIM develops, likely to see increased use of collaborative contracts and Integrated Project Insurance.

Integrated Project Insurance (IPI) Construction “all risks” Third Party Liability (“PL”) Delay in completion Financial losses (including delay) Latent defects for 12 years

Software Compatibility Production of BIM Models is dependent upon software and technology. Model issues arising from software issues are not uncommon. Risk of Model changing when accessed by a different version of software. Exclude liability for such issues (CIC BIM Protocol Clause 5) Do not agree to be “solely responsible for the suitability and integrity of the selected software and any information, drawings, specifications or other information extracted from the model” (CIOB Contract for use with Complex Projects (clause 11.3.4)).

Information Management In March 2013, CIC issued Information Manager scope of services. CIC see the Information Manager role as not including “design”. Information Manager helps lay down the process and procedures. Not the same as the Lead Consultant role, but may be the same person. Avoid strict liability in relation to technology. Take care if requested to “host” models. Additional fee for Information Management role in fee proposals?

CIC BIM Protocol Appendix 1 (Model Production and Delivery Table)

Summary BIM is a positive tool and should reduce risks but needs to be approached carefully. Establish at an early stage what will be required in relation to BIM. BIM obligations should be clearly set out in a BIM Protocol/the Appointment. On a BIM project setting out your scope clearly is key. Look out for strict/onerous obligations in relation to BIM. As BIM develops, collaborative contracts likely to be used more.