Practical Law

In this blog we consider building information modelling (BIM) in the Middle East and some of the key issues you should be aware of as the use of BIM becomes more prevalent in the region.

BIM is being used with increasing frequency on some of the major infrastructure projects in the Middle East. For those unfamiliar with it, BIM is the digital representation of a project from concept design through to construction and operation. 

A recent BIM Leadership Forum held in Dubai in December 2014 highlighted some of the benefits and challenges of using BIM in the region. Industry experts agreed that BIM is a valuable tool in the project lifecycle and may help to avoid significant cost overruns. It is useful for designing, pricing, programming, co-ordinating, integrating and sequencing work activities and helps to identify potential conflicts between different elements of the works.

One of the challenges with BIM is ensuring that all the parties on a project are committed to and use BIM software. Some design and build contractors in the Middle East may have challenges getting their supply chain to use BIM – usually due to lack of expertise or the increased cost of recruiting a BIM manager.

If BIM is used on a project, users should be aware of the following key issues, particularly in the Middle East:

• Intellectual property rights.
• Resolving inconsistencies between drawings and the BIM models, particularly where drawings show different dimensions or layouts from the configurations on the BIM models.
• Liability and responsibility for managing the BIM models.

Intellectual property rights

IP rights are always an important consideration for employers and the end users of projects. FIDIC – the preferred standard form of construction contract in the Middle East – contains provisions that give the employer an IP licence to use the contractor’s documents, such as computer programs and models.

Arguably, the employer has the relevant IP licence from the contractor for the BIM model prepared by the contractor under a standard FIDIC contract. However, for the avoidance of doubt, BIM models should be expressly included in the definition of the contractor’s documents. The parties may also wish to supplement the existing FIDIC provisions at sub-clause 1.10 (Employer’s Use of Contractor’s Documents) and sub-clause 1.11 (Contractor’s Use of Employer’s Documents) by including drafting to allow the parties to licence to each other the BIM models.

Warranties and supporting indemnities should also be provided by the contractor, guaranteeing that it owns the IP in the BIM models or has the right to license their use. Contractors must then ensure that the necessary licences are granted by their relevant design sub-consultants. Finally, the IP licence granted to the employer should include the right to grant sub-licences, transfer, novate or assign the IP rights to any third party.

Resolving inconsistencies between design documents

– at tender stage

It is increasingly common in the region for bidders to be issued with the BIM models and drawings as part of the tender documents. If, however, there are inconsistencies between the BIM models and the drawings, confusion can arise as to which of the documents the bidders should use to determine the correct quantities to calculate the tender price.

Consistency between the BIM models and drawings is key and the tender documents should clearly indicate which will take precedence if there is any inconsistency. Bidders should always bring an inconsistency to the attention of the employer and raise a tender clarification to avoid problems post contract award.

– at contract award

If hard copy drawings are included in design documents, there may be inconsistencies between them and the BIM models. Again, unless the priority of documents provisions are clear, confusion and disputes may arise about which documents take precedence and whether the contractor is required to execute the works in accordance with the drawings or the BIM models.

While contracts usually contain a “priority of documents” clause, they do not always identify which “design” document has priority in the event of inconsistencies. FIDIC is silent on the use of BIM and so careful consideration should be given to how inconsistencies will be resolved.

Given that drawings and BIM models are both likely to be treated as design documents describing the scope of works, there should, ideally, be no inconsistencies between them. If this can be achieved it is sensible that the drawings and the BIM models have the same priority.

Managing BIM models

In a traditional construct-only contract, the responsibility for updating and managing the BIM models, including resolving inconsistencies between design documents, should sit with the employer. The contractor should, in theory, be entitled to additional time and money resulting from failure by the employer to discharge its responsibility if such failure delays or impedes the contractor’s work, although not all contracts will address this.

Under a design and build contract, the contractor typically has single point design responsibility and the contractor will be responsible for managing and updating the BIM models, including resolving inconsistencies between design documents. The contractor cannot recover additional money from the employer for the contractor’s failure to discharge its responsibility, but it may have recourse against its design sub-consultants. It is unlikely the contractor can pass the liability down the supply chain, through back-to-back contract provisions, if sub-consultants in the supply chain are not using BIM.

Going forward

Where BIM is used, whether in the Middle East or elsewhere in the world, all parties must ensure their contracts clearly define the BIM deliverables and the roles and responsibilities of each party for updating and maintaining the BIM models. Bidders should be aware of the liability they are accepting in relation to conflicts between drawings and the BIM models, especially if the contract is silent or unclear on the use of BIM.