4th Qatar BIM User Day, BIM and the Law

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Speaker: Owen Delaney

Published in: Engineering

4th Qatar BIM User Day, BIM and the Law

  1. 1. 1Owen Delaney BIM and the Law
  2. 2. 2Owen 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
  3. 3. 3Owen Delaney Introduction BIM Policy through a Legal Lense BIM in Construction Contracts The Future of BIM, legally speaking
  4. 4. 4Owen Delaney BIM Policy through a Legal Lense Is there a need for a BIM law or policy in Qatar?
  5. 5. 5Owen Delaney Law vs Policy Should Qatar establish a BIM framework by Policy or by Law? Law – mandatory! Policy – mandatory?
  6. 6. 6Owen Delaney 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
  7. 7. 7Owen Delaney 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
  8. 8. 8Owen Delaney 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?
  9. 9. 9Owen Delaney 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)
  10. 10. 10Owen Delaney 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.
  11. 11. 11Owen Delaney 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
  12. 12. 12Owen Delaney 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?
  13. 13. 13Owen Delaney Status Quo If it ain’t broke… BIM law already?
  14. 14. 14Owen Delaney 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”
  15. 15. 15Owen Delaney 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)
  16. 16. 16Owen Delaney Policy Conclusion Coercive Legislation Necessary? Effective? Process? Facilitative Legislation Should only address specific legal needs of BIM Neutral perspective Aspirational Legislation Government Agenda
  17. 17. 17Owen Delaney BIM and Construction Contracts BIM and Contracts Insurance Intellectual Property
  18. 18. 18Owen Delaney 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.”
  19. 19. 19Owen Delaney 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?
  20. 20. 20Owen Delaney 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
  21. 21. 21Owen Delaney 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?
  22. 22. 22Owen Delaney Intellectual Property Who owns the Model? Who owns the information in the Model? Who has access to the Model? Who can use the Model?
  23. 23. 23Owen Delaney The Future of BIM, legally speaking Essence of Construction Contract = Risk Allocation Essence of BIM = Co-operation and Collaboration Answers on a postcard, please?

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