Chapter 26 BIM in Australia

The uptake in BIM has occurred more widely in the Australian private sector compared to government projects. In 2016, the House of Representatives Standing Committee on Infrastructure, Transport and Cities released its Smart Information and Communications Technology Report, recommending that the Australian Government require the use of BIM on all major infrastructure projects exceeding $50 million.

In April 2022, the same Standing Committee published a further report entitled Procurement Practices for Government-Funded Infrastructure, which again made recommendations for the adoption of BIM. This time the committee urged the Commonwealth Government to enforce tender requirements that use BIM. Notwithstanding these reports and recommendations, there are still no federal mandates on the use of BIM on government projects.

Most state and territory governments have begun adopting BIM on a project-by-project basis, resulting in bespoke, rather than consistent, approaches. Some states have used BIM on significant infrastructure projects, particularly hospitals, but typically only in the design and construction phases and not during the operation and maintenance phases of the completed project.

Several jurisdictions have published guidelines on BIM:

The publication of these guidelines has encouraged the further adoption of BIM by government agencies and private industry.  Each guideline purports to direct government, industry and the public on the value of BIM and its realisation across all phases of the asset lifecycle.  They thereby foster collaboration between project participants whilst reducing overall costs overarching and improving construction practices.

The Office of Projects Victoria published the VDAS in February 2019.  VDAS provides a uniform approach for consistent use of BIM in Victoria.  VDAS identifies key legal considerations that should be addressed in any contract involving BIM, including, intellectual property and ownership; confidentiality and privacy; licensing; data sovereignty and critical assets; data security and integrity; critical asset requirements and liability and information reliance.   VDAS represents the next evolution in engineering and addresses deficiencies in Victoria’s approach to implementing BIM across three levels:

  • VDAS Part A – Strategic provides insight on the planning, delivery, operation, and maintenance of assets, and highlights how VDAS can meet government acts, policies, and other obligations;
  • VDAS Part B – Organisation details guidance and advice valuable to those involved in the management, direction and portfolio management of major assets and projects;
  • Part C – Application provides project-level advice for those engaged by government through front-end implementation of DE and includes:
    • the key legal risks of implementing DE; and
    • how legal risk can be allocated between relevant parties.

Whilst its implementation is not mandatory, VDAS encourages government and industry to reform information management, processes and elements to deliver best value for money to Victorian projects in a holistic and strategic manner.

Legal issues and risks associated with BIM

One of the most reported obstacles to the successful adoption of BIM is the perceived legal obstacles associated with its integration. An obvious starting point for any consideration of contractual issues relating to BIM is examining existing key clauses in construction contracts and determining whether they are adequate for projects where the parties wish to use BIM.

The table below outlines the main legal issues, their associated risks and a high level overview of risk mitigation strategies.

Legal issue Risk Risk Mitigation Strategy
IP and ownership uncertainty regarding ownership
increased risk of IP infringement and misuse of information
insufficient usage rights
increased frequency of disputes		 clear IP definitions and provisions
scope ownership rights
distinction between foreground and background IP rights
technical and contractual restrictions
retention of ownership
avoidance of joint ownership
Licensing uncertainty regarding software licensing
lack of experience		 clearly defined licences
consideration of scope, required purpose(s), duration, inclusions and conditions
Privacy breach of privacy laws
unauthorised access to data		 legislative and contractual privacy constraints;
strict security protocols
Data sovereignty and critical assets losing access to key data
onerous conditions on access to data		 consideration of data transfer
consideration of where information will be hosted and stored
Data security and integrity corruption of data
unauthorised access to data		 security risk profile assessment
development of protective data security plan
Liability and information reliance inability to rely on fitness for purpose warranties
increased liability for indirect or consequential loss
disputes regarding accountability for data		 non-reliance on an ‘information only’ basis reliance & transfer model
fitness for purpose warranties
indirect & consequential loss exclusion
Insurance inability to obtain insurance
unauthorised access		 appropriate insurance policies (eg cyber insurance)
contractual division of insurance/risk

As the implementation of BIM in Australia is progressing relatively slowly (and also due to its use primarily in works procured in less adversarial collaborative contracting models), there is limited case law which consider the legal issues and risks associated with BIM.  However, as the following case studies outline, Australia can look to the United Kingdom and United States for emerging lessons on BIM so as to avoid any of these legal issues and risks.

CASE STUDY

Trant Engineering Ltd v Mott MacDonald Ltd [2017] EWHC 2061 (TCC)

Facts
  • The UK Ministry of Defence contracted Trant Engineering (contractor) to provide a new power generation facility in the Falklands Islands.
  • The contractor engaged Mott MacDonald (consultant) to provide design consultancy services.
  • The consultancy contract included a licence for the contractor to use the designs subject to a right of suspension if full payment were not made.  The consultant proceeded with design co-ordination and the preparation and implementation of BIM.
  • Following a dispute as to payment, the consultant blocked access to the BIM model.
  • The contractor sought an injunction to access the BIM model so that the project did not hit a standstill.
Result
  • The court held that it was fair and reasonable to grant to the contractor an interim injunction and order the consultant to give access to the BIM model.
  • This case demonstrates the need for parties to approach using BIM in a collaborative manner and the need to draft contractual clauses which are sound and grant each party access to a BIM system in order to reap its benefits.
  • Relevant considerations include who will host the BIM model, who will access and contribute to the BIM model, the scope of relevant licences and ownership of IP in the BIM model.

CASE STUDY

North American Mechanical, Inc v Walsh Const. Co II, LLC No. 12-CV-598, 2015 WL 5530190 (E.D. Wisc. Sept. 18, 2015)

Facts
  • Mercy Walworth Hospital and Medical Centre in Lake Geneva, Wisconsin contracted with Walsh (contractor) to remodel and expand the hospital facility.
  • The contractor engaged North American Mechanical (subcontractor) to install the heating, ventilation and air conditioning systems for the project.
  • The parties used a BIM model for the project.
  • The subcontractor claimed that the BIM model was not operating as effectively as it should and caused changes to the scope of the works for which the subcontractor sought additional compensation.
Result
  • The court would not order that the contractor pay the subcontractor additional compensation for the changes to the scope of the work.
  • The court held that the lack of input into the BIM model was the result of the delay and that the contractor had not breached its implied duty of good faith and fair dealing.
  • This case demonstrates the need for parties to have strong contractual clauses in relation to data reliance, liability and fitness for purpose warranties.

Procurement Models and BIM

BIM is not in itself a form of procurement.  Rather BIM acts as an interface between participants who contribute to the project’s design. The optimal implementation of BIM will depend heavily on selecting the appropriate procurement model and then documenting it.  The procurement strategy will define the process and management of the BIM model creation. Various considerations come into play in deciding which form of procurement will be adopted for a particular project and how the contract allocates risks between the parties.

In Chapter 2: Project Delivery Methods we provide a summary of the various procurement models used to take the design and construction of a project from conception to completion and handover to the principal. 

All forms of construction and consultancy contracts can be tailored to address the risks associated with BIM.  This may require:

  • greater attention to technical requirements to ensure that they are sufficiently detailed, clear and consistent;
  • adjustments to existing agreements to mitigate individual legal risks; or
  • the development of provisions that deal specifically with BIM.

Given its inherently collaborative nature, BIM is more readily applicable to collaborative contracting models.  On the other hand, traditional contracting models coalesce less effectively with BIM.  Traditional contracting models require some level of amendment to obtain the benefits of BIM as a consequence of their greater emphasis on lump sum pricing and the consequential need for certainty.

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