The following points address some issues which may affect the conditions of engagement and fees, and PI cover, for BIM.  They are drawn from an Australian legal paper which dealt with BIM across the whole project life.

  • The BIM model is dependent on multiple contributors and will be relied upon by others for future unknown decisions.  How do you confine your liability to your input only?  This is likely to require specific terms of engagement. 
  • If an “issue” (or dispute) arises out of the use of the BIM model, there is the potential that you may incur costs and resources regardless of the relevance of your contribution to the problems.  How do you “ring-fence” or allocate liability to the respective inputs by the various contributors or users?
  • If there is some ambiguity or conflict between the BIM model and the other responsibilities you have under your engagement – or have described in your design/specification – which takes precedence?
  • The definition of quality standards may require amendments to address the standard BIM guidelines and consistency across all contributors.
  • Is there a “BIM protocol” which specifically deals with liability and responsibility, order of precedence, and the resolution of conflict?
  • There need to be protocols to trace work carried out in BIM and establish what occurred, who did what to whom and when, and to establish causation in the event a dispute arises.
  • What are the intellectual property rights and ownership issues?  Who “owns” the BIM model and controls access and use?  To what extent does it affect your copyright on design elements?
  • Insurance:  NZACS Professional Indemnity does not specifically exclude BIM design, as this is regarded as within the scope of architectural business practice.  But the insurance contract does have some provisions in respect of liability which would make it prudent for members to discuss the BIM contract terms and possible fish hooks with Aon, the insurance brokers for the NZACS scheme.  Also consider Cyber Liability, and the additional protection it provides.
  • The operation of BIM on a project may inadvertently allow parties to access information which is otherwise confidential.  Parties may consider restricting access to different areas of BIM.