International Construction Law Review
INTRODUCTION
HUMPHREY LLOYD DOUGLAS S JONES
Building Information Modelling (BIM) is being increasingly used. Within five years virtually every UK Government project will be carried out using BIM. But consultants and contractors will have to invest millions to remain in this public sector. Yet the RIBA found last year that only 13% of people that it surveyed were using BIM (and 43% were unaware of it). Its legal implications are still being explored. As a tool for designers it is not just superior software. It goes much further than CAD. It requires a radical reconsideration of working practices and relationships, both commercial and legal (including arrangements for insurance). BIM deserves thoughtful attention. A few years ago we were pleased to be able to publish the seminal paper from Kimberly A Hurtado and Patrick J O’Connor, Jr, on “Contract Issues in the Use of Construction Building Information Modelling” [2008] ICLR 262. We are therefore very happy to present (at page 264) a further contribution “On Some Legal Aspects of BIM in Establishing a Collaborative Relationship” from one of our most valued members of our Editorial Advisory Board, Professor Dr Monika Chao-Duivis who, amongst other things, is Professor of Construction Law at the Delft University of Technology.
In her paper Professor Chao-Duivis discusses not only the need for contracts to govern the relationships between those using BIM but also the need to deal with the fact that those involved are working at the same time on something which is only represented in a computer. She explains the justification for new contractual documents which will modify current standard forms and which will also deal with the intellectual property in the BIM process and product. In turn she examines questions of liability and the organisation of the BIM team, as well as on tendering. Her paper is stimulating and, by focusing on the fundamental issues, its conclusions will be applicable in most jurisdictions with developed law. Professor Chao-Duivis however emphasises that since BIM is “fast becoming the way to designing”, time is not on our side.
Our next paper is about a subject that is more evolutionary than innovative. Mr Andrew Chew and Mr Geoff Wood, partners of Baker & McKenzie, Sydney, write about design-build or design-construct-operate-maintain contracts (at page 275) under the title “DBOM Contracts in Australia”. Such contracts have been used for some time. The authors use recent projects in Australia to discuss the perceived advantages and disadvantages of the model and the key factors involved in creating a structure for a DBOM contract, as well as the agreements between the design and construct contractor and the operation and maintenance contractor before considering the risks involved in such contracts.
At page 294 Dr Franco Mastrandrea contributes a detailed and, in places, provocative paper on “The Evaluation of Plant Claims in Construction”.
The International Construction Law Review [2011
262