Clayton Utz Insights
24 May 2012
By Ilsa Kuiper and Marko Misko.
The widespread adoption of BIM in Australia will need to overcome a number of challenges.
Industry interest in Building Information Modelling (BIM) is growing. Advocates claim BIM offers significant benefits to how projects can be delivered – but is Australia ready?
What is BIM?
Building Information Modelling or BIM is the creation of a digital model of a facility that integrates multi-discipline contributions and information, and simulates project and lifecycle applications for analysis. While the concept of BIM is not new, multi-source BIM authoring and analysis tools are evolving.
Contributors to a BIM model provide not only the spatial, graphical and dimensional context of a facility, but also the attributes, information and relationships of the facility components, for more detailed analysis and modelling.
Advantages of BIM
BIM represents a shift in how building lifecycle data is created, used and shared. Further, BIM is viewed as an effective tool for Integrated Project Delivery (IPD), a project delivery approach that integrates collaborative processes to optimise project outcomes.
BIM users can:
- visualise 3D forms of project deliverables;
- improve project coordination and predictability;
- drive cost savings and project efficiencies;
- simulate and manage as-built functions and operations; and
- use models for master or urban planning, infrastructure development and designing city environments.
Improvements at a project level are anticipated to have a direct effect on the industry. A 2010 report commissioned by the Federal Government suggests BIM has the potential to:
- make a significant difference to national economic performance if widely adopted; and
- streamline processes throughout building lifecycle through the integration of design, engineering, construction, maintenance and decommissioning information.
BIM – legal considerations
Unknown or uncertain factors, or shifts in risk, give rise to legal implications. Like all new ideas, BIM is a case in point. On the one hand, the increased collaboration and early sharing of documentation potentially reduces some risk and disputes. Conversely, BIM creates new difficulties and different risks.
The following examples touch on the types of considerations that may apply if BIM is adopted.
Project Delivery Method – BIM is a naturally better fit with relationship contracting arrangements, rather than conventional (fixed time/fixed price) delivery methods which are structured around standard risk allocation and less readily matched to harness or apply the collaborative intent of BIM.
Contracts – As design and data management are core elements of BIM, it is imperative that contracts are prepared only following full consideration of all associated legal issues, such as:
- copyright and intellectual property;
- determining the warranties required;
- liability apportionment and insurances;
- contractual requirements and responsibilities associated with contributions to BIM/management of models, including quality and standardisation; timelines; processes and protocols; certification, compliance and deliverables; and potential new roles/management tools and systems (eg. BIM or Information Manager, BIM Management Plan or BIM Execution Plan); and
- confidentiality and security.
More complex functions and analyses of BIM, such as sequencing/scheduling or pricing/accounting related applications, may also require contractual consideration.
Procurement – BIM will also affect tender processes. For example, for construct only contracts:
- would tenderers be able to access and use the BIM model?
- what is the legal status of the model and data produced, and what representations should be made to tenderers?
Financing – Given the current market, it may be necessary to consider whether financiers (on project-financed projects) can benefit directly from the implementation of BIM and how possible associated contract risks should be determined.
BIM in Australia
From early examples (Sydney Opera House on the Facilities Management Exemplar Project) to more recent projects (delivery of the Adelaide Oval Upgrade Project and 1 Bligh Street, Sydney), it appears the number of projects using BIM in Australia is increasing.
As far as BIM is concerned, perhaps Australia is poised to take the next step onto the international construction industry stage, whether:
- drawing from experiences and projects where the BIM procurement initiatives such as the Document Exhibit 202 (by the American Institute of Architects) and ConsensusDOCS 301 have been used in the US;
- following the implementation of the UK Government directive to mandate BIM on all central projects in excess of ₤50M by 2016 and the similar mandate for BIM by the Singaporean Government, offering financial incentives to those willing to be the early pathfinders towards a goal of increased industry adoption, and ultimately full BIM submissions by 2015; or
- reviewing implemented BIM policies and projects of the Governments of Denmark, Finland or Norway.
It appears, however, the widespread adoption of BIM in Australia will need to overcome a number of challenges, including industry acceptance and use, an evolving BIM workforce and expertise, establishment of recognised/accepted standards and protocols and legal considerations.
As an industry, all players – owners, consultants, contractors, government, professional associations, software manufacturers, subcontractors, facility managers – and lawyers – will need to be involved, to collaborate and ensure the shared benefits and advantages of BIM are realised.
Of course, for all those interested in BIM – watch this space!
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.
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