The application of BIM under the FIDIC Form of Contract
By Jeremy Glover, Partner, Fenwick Elliott
I was recently asked by BIM4Legal1 to contribute to the discussion at their recent evening seminar on the interpretation and application of BIM in international contracts.
The topic I was asked to consider was the application of BIM in the FIDIC Form of Contract. When FIDIC introduced its second edition of the Rainbow Suite, there was no specific mention of BIM in the General Conditions. Instead there is a special Advisory Note within the Special Provisions which deals with the use of BIM. This was the approach in the Emerald Book for Tunnelling Contracts which was released in May 2019. If you would like to read more, please click here.
Instead of setting out a particular approach, FIDIC has chosen to highlight the issues that those working with BIM need to consider when using the FIDIC contract. For example, although it notes that many projects use a BIM Protocol, FIDIC has not prepared its own Protocol or recommended the use of any particular one. Instead, FIDIC has indicated that it is currently preparing two documents – a “Technology Guideline” and a “Definition of Scope Guideline Specific to BIM”. These are intended to provide further detailed support for the use of BIM on projects that use the FIDIC form.
The particular difficulty for FIDIC is the fact that the contract is used so widely globally. A BIM Use Survey Report carried out in September 20172 by the FIDIC Young Professionals Forum Steering Committee highlighted that 49% of respondents did use BIM in their work but 44% did not. Whilst that figure will have changed, it does demonstrate the wide gulf of knowledge the FIDIC needs to embrace in its guidelines.
Indeed, the Advisory Note acknowledges that there is a wide range of understanding and usage of what FIDIC terms the “varying degrees of complexity” associated with BIM. This is something FIDIC needs to address, and probably explains, in large part, the time FIDIC is taking to finalise its position. As FIDIC notes, BIM is:
“founded on a team approach and successful projects utilising BIM encourage collaboration”.
FIDIC also recognises the value of the early proactive engagement of all parties to a project. Here, one potential problem with BIM is managing expectations. This is recognised by FIDIC, which notes that any Request for Proposal should outline what an employer is anticipating in terms of goals and benefits.
So what issues might you have to consider on a BIM-enabled FIDIC project? FIDIC has identified the following key risk areas on any BIM-enabled project:
- misunderstanding of scope of services;
- use of data for an inappropriate purpose and reliance on inappropriate data;
- ineffective information, document or data management;
- cyber security and responsibility for “holding” the models or data; and
- definition of deliverables, approval and delivery.
In other words, everyone must understand exactly what they are being asked to do. The reference to the importance of clear definitions is particularly relevant on international projects where you often find companies from a number of countries working together. Indeed, FIDIC is well placed in this regard. Golden Principle 2 calls for “Clear and unambiguous drafting”. Therefore it is likely that any “BIM definitions” that are adopted by FIDIC will be based on international standards, preferably ISO 19650. As Jøns Sjøgren, Chair of the ISO technical subcommittee, said:3
“Taking this to an international level not only means more effective collaboration on global projects, but allows designers and contractors working on all kinds of building works to have clearer and more efficient information management.”
Looking at other clauses in the Rainbow Suite, FIDIC already considers the priority of documents in sub-clause 1.5. In the UK, the CIC Protocol 2nd Edition essentially states that the Protocol will only take precedence over the main contract where there is a conflict in respect of those clauses in the protocol which deal with employer and contractor obligations. This could be something that FIDIC adopts.
When it comes to questions of copyright and the use of the Employer’s and Contractor’s documents, there may be a number of issues to consider in addition to the basic FIDIC position as outlined at sub-clause 1.10. For example, does the Contractor have the right to license to the Employer all of the data in the design documents? As things stand, no, only the Contractor’s documents. Remember that the model may well be a collection of elements and/or objects from a number of parties. Have all of those parties given consent?
There may be a need for an expanded confidentiality clause which will of course also require contributors to identify confidential data as and when it is incorporated into the model. Are there restrictions on access, copying and transmission of data? It may well be essential that the Employer’s Requirements set out what is required for the model.
Another issue you increasingly need to consider on any project is how data is collected and used on the project. To whom does it belong? Who has the right to use drone footage or other progress data?
When it comes to design obligations, you may want to check to see if they are aligned. Is everyone who contributes to the model under the same obligation? Is it fitness for purpose, the standard FIDIC default for contractors, or reasonable skill and care?
Similarly with insurance, clause 19 does not currently consider parties other than the contractor and employer. Thought may need to be given to the role of funders and, more particularly, subcontractors, suppliers and those with a design responsibility. You should do so if clause 19 covers all elements to the design. On site yes, but remember that often works under one FIDIC contract are part of a greater project whole. Remember, too, to consider cyber security and/or data corruption. If you want to adopt integrated project insurance then a greater amendment will be required.
What about programme? A key feature of BIM-enabled projects is a need for a BIM Execution Plan (“BEP”). It’s good practice for this to be ready as early as possible. The demands of the BEP need to tie in with the sub-clause 8.3 programming obligations. The BEP is best viewed as being in addition to but aligned with the construction and design programmes. That said, under sub-clause 4.20, Progress Reports are a precondition to payment. Perhaps this should include the BEP too.
FIDIC too is encouraging a more collaborative way of working, a key element of BIM-enabled projects. There is a noticeably increased emphasis given to early warning and real-time dispute avoidance and resolution in the 2017 Second Edition.
Further, FIDIC in the Advisory Notes to BIM Users, says that BIM is “a process, has varying degrees of complexity”, and “is a mechanism to provide an environment where all parties have access to information relevant to their role in the design and construction of a project”. This means that it is important that parties’ roles and responsibilities are clearly defined. The FIDIC approach as set out in the 2nd Edition is to adopt a number of “step-by-step” procedures and deeming provisions. The purpose of these is to provide clarity about what needs to be done, by whom and when. These are key considerations when it comes to outlining requirements on a BIM-enabled project and so suggest that this current FIDIC approach is well suited to the drafting of BIM provisions.
For example, consultants are encouraged to clearly define:
- the proposed systems and management processes;
- access rights and limitations of the client, other consultants and contractors;
- reliance other parties may place on data in the digital environment;
- potential access limitations and exclusions of liability for downtime;
- potential exclusion of liability in the event of cyberattack;
- potential exclusion/limitations on professional liability for the actions of others;
- access to all versions of the project model/ the audit trail of changes.
FIDIC’s Strategic Plan for 20194 recognises that one of the major emerging challenges for the consultancy and engineering industry is:
“The impact of new technologies: Building Information Modelling (BIM), collaborative work, big data and others.”
FIDIC seems well placed to deal with this and we await their BIM guidelines with interest. In the interim, remember that BIM is more than simply digital working. It is a management process, which should establish who is responsible for what. With that in mind, always remember that Contract risk management never changes, whether using BIM or not:
- No matter what contracts, protocols, guidance notes or otherwise are required on a particular project, it is important to understand your obligations, liabilities and limitations within each document.
- If the contract documents do not align with each other and/or are not considered sufficiently in detail, this can lead to ambiguity and uncertainty.
- Make sure you understand what you are being asked to do as, depending on the terms of your contract, these could be binding documents with obligations contained therein which you need to understand and be alert to.
- 1. A group set-up to support understanding & knowledge-sharing of BIM amongst the legal community & those in industry who instruct them, encouraging & facilitating best practice: see their Twitter account: @BIM4Legal
- 2. http://fidic.org/sites/default/files/Blog/%20pdf/BIM%20Use%20Survey%20Re... [Accessed 28 November 2019]
- 3. Comment made as part of the launch of ISO 19650 in January 2019. See https://www.iso.org/news/ref2364.html [Accessed 28 November 2019]
- 4. http://fidic.org/node/24097 [Accessed 28 November 2019]