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1 Owen Delaney BIM and the Law
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4th Qatar BIM User Day, BIM and the Law

Aug 19, 2014

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Engineering

BIM User Day

Speaker: Owen Delaney
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Page 1: 4th Qatar BIM User Day, BIM and the Law

1 Owen Delaney

BIM and the Law

Page 2: 4th Qatar BIM User Day, BIM and the Law

2 Owen Delaney

Introduction

The mere formulation of a problem is far more often

essential than its solution, which may be merely a matter of

mathematical or experimental skill. To raise new questions,

new possibilities, to regard old problems from a new angle

requires creative imagination and marks real advances in

science.

Albert Einstein

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3 Owen Delaney

Introduction

BIM Policy through a Legal Lense

BIM in Construction Contracts

The Future of BIM, legally speaking

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4 Owen Delaney

BIM Policy through a Legal Lense

Is there a need for a BIM law or policy

in Qatar?

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Law vs Policy

Should Qatar establish a BIM

framework by Policy or by Law?

Law – mandatory!

Policy – mandatory?

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BIM by Law Should Qatar create legislation for BIM?

Why legislate? Project cost savings?

Enhanced Project Delivery?

…………...Industry Facilitation

What would a BIM law look like? Mandated use of BIM?

Mandated level of BIM?

Defined BIM Processes (data drops, LoDs)?

……………Industry Coercion

Should the law seek to go further? Enable industry framework for BIM?

……………Industry’s Aspirations

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BIM by Law

What type of legislation?

Coercive Legislation

– to mandate or prohibit a course of action

Facilitative Legislation

– to enable a particular course of action

Aspirational Legislation

– to encourage a particular course of action

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BIM by Law

Coercive Legislation

Generally required to respond to a fundamental need of society

- “Thou shallt not kill”

- “Thou shallt not exceed your LoD in Data Drop 4” ???

Coercion predominantly functions through fear of consequences

of breach – jail, fines

Construction law context – breach of contract, damages etc.

Is the need for a BIM law that great?

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1. The government and its officials and agents as well as

individuals and private entities are accountable under

the law.

2. The laws are clear, publicised, stable and just, are

applied evenly, and protect fundamental rights,

including the security of persons and property.

3. The process by which the laws are enacted,

administered and enforced is accessible, fair and

efficient.

4. Justice is delivered timely by competent, ethical,

and independent representatives and neutrals who

are of sufficient number, have adequate resources, and

reflect the makeup of the communities they serve.

Legislation Process

Substantive

Content of Law

Administration

of Law

BIM by Law Coercive Legislation → Rule of Law Four universal principles (World Justice Project definition)

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BIM by Law Facilitative Legislation

Example – Unfair Contract Terms Act 1977

Article 5 “guarantee” of consumer goods

In the case of goods of a type ordinarily supplied for private use or consumption,

where loss or damage –

(a) arises from the goods proving defective while in consumer

use; and

(b) results from the negligence of a person concerned in the

manufacture or distribution of the goods,

liability for the loss or damage cannot be excluded or restricted by reference to any

contract term or notice contained in or operating by reference to a guarantee of the

goods.

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BIM by Law

Facilitative Legislation for BIM? - If contract is silent, ownership of the BIM Model vests in the Employer

- If head contract includes a BIM Protocol, it is implied into each Subcontract

(unless expressly excluded)

- Implied intellectual property licence between project participants

Aspirational Legislation for BIM? - Tax breaks for BIM Projects

- Insurers cannot seek to rely on cover exclusions on the basis that they

were not expressly informed the contractor is carrying out a BIM project

- PI Policy renewals imply certain BIM-related issues

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BIM by Policy

Who drives the policy? Govt? Industry?

Who benefits from the policy? Employer? Contractor? Insurance Co?

Should the policy become law? To what level should the courts enforce?

Line between policy and law – Tantamount to legislation?

What do you need for a policy? A proposal? A statement? An agreement?

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Status Quo

If it ain’t broke…

BIM law already?

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Status Quo

Law No. 22 of 2004 (the "Civil Code”)

Article 171(1): “the contract is the law of the contracting

parties, and it is not permitted to revoke or

amend it, except by agreement of both parties or

for reasons prescribed by the law”

Article 154 (1): “A contract may contain any condition that is

agreed by the contracting parties, if it is not

prohibited by law or contrary to the public order

or morals”

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Status Quo

Under Article 171(1), a BIM Protocol in your contract will become the law

between the Parties – i.e. cause of action shall arise out of breach of BIM

Protocol

…but

In the absence of Facilitative Legislation, more careful drafting and

attention to procurement documents is required (e.g. design subcontract

fails to incorporate BIM Protocol)

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Policy Conclusion

Coercive Legislation Necessary?

Effective?

Process?

Facilitative Legislation Should only address specific legal needs of BIM

Neutral perspective

Aspirational Legislation Government Agenda

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BIM and Construction Contracts

BIM and Contracts

Insurance

Intellectual Property

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BIM and Contracts

Implied BIM vs Express BIM Implied BIM – Interfacing Clause

“The Contractor shall be responsible for checking, verifying and approving detailed designs of

Licensors as provided by or on behalf of the Employer to the Contractor as if its own and take full

responsibility and risk in relation thereto, and shall ensure and be responsible for the proper

interface of such designs with the Contractor's detailed designs and other requirements as

detailed in the Exhibits”

Express BIM – BIM Protocol and Enabling Clause “The Employer and the Contractor shall:

(a) comply with their respective obligations set out in the BIM Protocol;

(b) have the benefit of any rights granted to them in the BIM Protocol; and

(c) have the benefit of any limitations or exclusions of their liability contained in the BIM

Protocol.”

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BIM and Construction Contracts

Express BIM – BIM Protocol

What is and who owns the BIM model?

What are the responsibilities of the BIM Information Manager?

Does the party managing the model assume additional liabilities and

risk?

What happens if you exceed your LoD?

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Insurance

≤ Level 2 BIM – PI Policies

“The overarching response to the consultation from insurers has

been that there are no issues with level 2 BIM which are sufficiently

serious as to require coverage restrictions for consultants which use

it, nor will its use, all things being equal, materially alter the risk

profile presented by a consultant, and therefore the premium

implications will be minimal.”

CIC/BIM INS First Edition 2013

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Insurance

Is the PI policy arranged on a “legal liability” (or civil liability) basis?

Does your PII policy contain any exclusions for “express guarantees”?

Are there any specific clauses dealing with document retention?

Does the policy contain any enhanced “loss of documents” cover

and, if so, are there any enhanced storage requirements?

Hosting the BIM environment?

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Intellectual Property

Who owns the Model?

Who owns the information in the Model?

Who has access to the Model?

Who can use the Model?

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The Future of BIM, legally speaking Essence of Construction Contract = Risk Allocation

Essence of BIM = Co-operation and Collaboration

Answers on a postcard, please?