By Andrea Lee, Partner, Glaholt LLP and Jason Lewis, Senior Legal Counsel, WSP Canada
Building Information Modeling (BIM) has been touted as a tool which allows project participants to work more collaboratively, deliver workflow processes with fewer errors, and improve schedule performance. Through BIM usage, architects, engineers, and other design professionals can develop and test their plans before construction, driving more innovative design. BIM also facilitates visualization and sharing of ideas with clients, contractors, and major trades.
Increasing awareness about BIM is leading to growth in its use around the world. The global demand for the BIM market was valued at 3.52 billion (USD) in 2016, and it is expected to reach 10.36 billion (USD) by 2022, growing at a rate of over 19%. In Europe, nations including France, Spain, and Germany have either implemented or are setting goals to use BIM on all public sector projects. The UK has the most advanced BIM strategy; for years, it has required all government projects to be BIM level 2 compliant and is now striving for Level 3. BIM is rapidly being adopted in China, Japan, Singapore, and India as the benefits of the technology are recognized.
As BIM technology evolves, the law related to the technology will inevitably change along with it. In recent years, questions as to how BIM will affect roles, standards of care, liabilities, intellectual property and cyber security issues have been raised. In the 2018 NBS National Construction Contracts and Law survey report, survey participants indicated that challenging legal issues included: “administration of the contract” (33%), “rules governing insurance and liability for risks” (25%), “dispute resolution process” (21%), “rules governing procurement” (18%) and “rules governing payments” (15%). The main categories of issues over which disputes arose were extension of time, valuation of variations and final accounts, deficiencies and, to a much lesser degree, ownership of BIM. Interestingly, 37% of respondents stated that when they used BIM on a project, a “bespoke” contract was adopted.
Many associations around the world have developed standard form BIM contracts with these concerns in mind. In late 2014, the Institute for BIM in Canada (IBC) released a contract appendix, the first of its kind in Canada. The IBC Appendix is designed to be used with industry standard contracts developed by the Canadian Construction Documents Committee (CCDC), Royal Architectural Institute of Canada (RAIC), Association of Consulting Engineering Companies (ACEC), and the Ontario Association of Architects (OAA), among others. The 2018 CCDC 30 for integrated project delivery (IPD), which envisions collaboration among clients, design professionals, contractors and major trades, specifically references theIBC Appendix.
With the increasing awareness of BIM in contracts and understanding how to engage with other project participants using BIM, it is no surprise that the number of related disputes is decreasing in recent years. For example, the 2018 NBS National Construction Contracts and Law survey reported that fewer people responded that the number of disputes was increasing or that they were involved in more disputes. Two thirds of those surveyed reported no disputes in the past year, compared to 56% in 2015.
Notwithstanding this commendable progress, the adoption of BIM has been slower in Canada relative to comparable countries. As RAIC notes, “the use of BIM is only now reaching a tipping point in the Canadian construction industry.” Is the slow growth of BIM due to a fear of new technology and associated legal risks, or are there other reasons why BIM is not penetrating the Canadian market as rapidly?
We interviewed two design professionals about their introduction to BIM, how BIM is used in their firms, legal challenges they encountered and how they envision BIM’s future in Canada. Despite differences in backgrounds, firms and clients, the interviews revealed some interesting commonalities.
Kobus de Villiers is a Director of Project Technologies, Buildings at WSP in Canada, one of the largest professional services firms in the world, with 500 offices in 40 countries. Kobus obtained his Bachelors of Engineering (Mechanical) from Stellenbosch University and has been with WSP, first in South Africa and now in Canada, since 2001.
Steve Nonis is a principal at Turner Fleischer Architects, a Canadian architectural firm with private sector clients ranging from residential developers to international retailers. Steve completed his Bachelors of Architecture at the University of Toronto and has been practicing with Turner Fleischer since 2002.
Both Kobus and Steve have been instrumental in pioneering the use of technology in design at their respective firms.
Kobus: The journey started in 2008, and I successfully motivated my team to start using the associated tools in 2009. Our WSP UK teams started investigating the tools as early as 2006 and started general commercial deployment in 2007. I will not be surprised if there are teams that started even earlier.
Nonis: I learned about BIM through conferences and industry events. At Turner Fleischer, we began implementing Revit and a 3D workflow in 2006, rapidly making it our office standard.
Kobus: Yes. There is a solid budget for external training. To add to that, our teams can access good quality online training resources. Over the years, a robust international network of technically skilled BIM leaders was established, and they are in contact on a regular basis across several platforms, including international Practice Area Networks (PANs).
Nonis: Absolutely. To ensure our workforce is ready and trained, we offer a comprehensive internal academy, drop-in sessions, and work shadow opportunities to pair staff across the studio.
Kobus: Larger more complex projects tend to be resourced with BIM at the core of the deployment strategy. However, smaller, repeatable projects present the best counterintuitive opportunity for commercially beneficial deployment of BIM.
Nonis: Public and institutional projects. Having said that, as the private sector transitions to new methods and sees the efficiency and long-term benefits of a BIM workflow, we anticipate more buy-in.
Kobus: Absolutely. The fact that some governments have mandated BIM on P3 projects obviously accelerated the adoption rate. I would say that depending upon the region, probably a 5-10% adoption rate is applicable. This might seem painfully slow but is an irreversible process with dramatic beneficial consequences.
Nonis: Turner Fleischer works primarily within the private sector. Our ability to leverage BIM within our projects is limited to its acceptance by clients, consultants and contractors. Full engagement with BIM is difficult without commitment from all stakeholders. However, in the past year we have seen a significant increase in understanding and interest, which is very encouraging.
Kobus: It is probably too early for me to make comment in this regard. Although it seems that sectors such as Transport (especially airports) and Healthcare see good top down adoption.
Nonis: We are not aware of any particular areas advancing BIM more than others within Canada. That being said, we see P3 and infrastructure projects having the most adoption.
Kobus: Migrating into a data rich BIM environment in an unmanaged way without sufficient up front communication and planning lead to increased risk. I believe the latest ISO standards (ISO 19650) address this subject well.
Nonis: This is all user perception. In our experience the legal fear is baseless and there isn’t additional risk versus other delivery models. Why fear a process that by its very nature encourages conversation and coordination?
Kobus: There is a renewed focus on understanding the Project and Client requirements at RFP stages. Furthermore, we are strengthening our support tools and structures, including technical expertise, training, common content libraries and taxonomy.
Nonis: For us, there is really no difference than any other project. Risk should be front of mind, BIM or not. To address expectations up front, we have been including the IBC BIM Appendix in our agreements.
Kobus: The region seems to possess all the key ingredients to see maximum benefit from migrating into digital projects. From more efficient delivery methods, bringing in more stakeholders in shaping infrastructure, a dramatic increase in safety to simply a more connected future ready environment, the opportunity remains significant. I believe an exciting future awaits teams and structures that drive BIM internally and in society.
Nonis: We need a government mandate. This will trickle down to the private sector and widespread adoption. It starts there.
The closing comments by Kobus de Villiers and Steve Nonis are insightful and reflect the sentiment captured in the 2019 2nd Annual BIM Report prepared by University of Toronto’s Building Tall Research Centre, Toronto BIM Community and Rescon. While there is an overwhelming sentiment in the industry that BIM is the future of project information, the report states:
As of 2019, Canada is the only G7 country without a national BIM mandate. Instead, the BIM momentum is being driven outward from the middle by the design community. As the visibility of BIM grows, the push upstream to owners and downstream to contractors is making evident the value of BIM processes and efficiencies. Governments and regulators are recognizing the potential for reducing time and red tape, and for improving process transparency.
With respect to barriers to using BIM, the report shows that “legal issues” is a lesser concern of survey respondents. It sits in fourth position out of the six primary corporate issues identified, behind issues of doubts on return on investment, lack of senior management support, and lack of in-house expertise. Broken down by discipline, none of the construction, architecture, engineering or BIM Specialist groups identified “legal issues” in their respective “top three” barriers.
Fears of additional liability, breach of intellectual property rights, cyber security and other legal issues being low on the list of perceived impediments to BIM growth aligns with the fact that in Canada, and indeed other jurisdictions, there is a dearth of reported litigation arising from BIM usage. Where BIM has been cited, the disputes were payment related as opposed to BIM-specific issues. See as examples North American Mechanical, Inc v Walsh Construction Company II, LLC, where the dispute concerned change orders, and Trant Engineering Ltd v Mott MacDonald Ltd that dealt with non-payment of the consultant.
It appears that legal issues, while still of concern to BIM users, are not a primary impediment to BIM’s market penetration in Canada. Our market seems well positioned to fully embrace BIM and the industry has taken the proactive steps to allow form BIM to be incorporated in agreements of all sizes. With helpful standard form contract appendices available and the knowledge that BIM use has no correlation to litigation, we expect BIM to take off once the industry overcomes the resistance to change and gains more experience with BIM. Whether our governments (federal, provincial or municipal) will launch any efforts to implement a widespread BIM plan remains to be seen, however such a move could only serve to accelerate awareness, skills development and use of BIM in Canada.
