Australia: Building Information Modelling (BIM) – what should you include in your contracts?

In brief - Everyone needs to agree on the rights and obligations of all BIM stakeholders before you enter into your project

When setting out the rights and responsibilities of participants in a BIM project, you should consider time and cost, collaboration and data input management, insurance, intellectual property and confidentiality.

Government releases strategy report on BIM

There is no question that Building Information Modelling in Australia is here to stay.

Since our last article on BIM in January 2012, Building Information Modelling – a new phase for the construction industry in Australia, and our BIM seminar in February 2012, the Department of Industry, Innovation, Science and Research and Tertiary Education released its report theNational Building Information Modelling Initiative, Volume 1 Strategy in June 2012. The report outlined key recommendations for the implementation of BIM into the Australian construction industry, together with a blueprint for facilitating that implementation through various work programs.

Those key recommendations and work programs include:

  • From 1 July 2016, all government building procurements to require full collaborative BIM, based on open standards for information exchange.
  • Commonwealth and state governments should be encouraged to introduce mandatory use of BIM for their building procurements.
  • Implementation of project work programs focused on issues such as procurement, BIM guidelines, education, BIM libraries and regulatory frameworks.
  • A joint government and industry task force be established to oversee and facilitate the implementation of the report's recommendations and the adoption of BIM by the Australian government.

Development of codes, standards, protocols and standardised contracts

The blueprint outlined in the report proposed, amongst other things, the development of legal instruments and protocols over the 2012/2013 and 2013/2014 financial years, including standardised BIM contracts, appropriate codes and standards for the use of BIM on projects and protocols for the exchange of information underpinning BIM and collaborative practice.

While the report indicates that any mandatory incorporation of BIM into government projects is still a little way off, BIM continues to be widely used on a number of projects across Australia.

Until the legal instruments, protocols, guidelines and standards referred to in the report are developed, there remains a risk that parties to a project using a BIM remain exposed to the new risks and liabilities the use of a BIM introduces.

Key legal areas of concern on BIM projects

The Australian Institute of Architects and Consult Australia recently identified intellectual property, professional indemnity insurance, stakeholders' responsibilities, encouraging cooperation and "no blame" as the key areas of concern when considering legal issues associated with BIM. (See BIM Legal & Procurement, August 2012.)

Given the collaborative nature of BIMs, it is these issues which need to be most closely managed when starting a project incorporating a BIM so as to ensure that the risks associated with developing the BIM are appropriately allocated and the rights of the parties to use the intellectual property included in that BIM are effectively managed.

Collaborative or traditional construction contract formats?

As we highlighted in our seminars, the construction and engineering industry has been characterised by a quasi-military command and control structure, dating back to Roman times (some of the ethics and behaviour would be familiar to Romans as well). We asked whether the collaborative nature of BIM would sit easily with that kind of structure. Anecdotal material suggests a mixed response.

Some insist that collaborative contract formats such as Integrated Project Development, Lean Construction, alliancing or even NEC3 are essential and got the best out of BIM. Others suggest that the very dispersed nature of responsibility encouraged by BIM demands a strict traditional hard dollar contract.

Set out below are some issues for consideration when structuring the parties' rights and responsibilities for a project incorporating a BIM.

Intellectual property in a BIM context

As BIMs are often jointly built by a number of different parties across the lifecycle of a project, it is essential before embarking on a project using a BIM that the following issues are considered and agreed by the parties and incorporated into the appropriate legal instrument:

  • Who owns the BIM? Is it the ultimate end user of the BIM (i.e. the owner of the building who retains the BIM for the purposes of facilities management)? Or does each party retain ownership of their own contribution and grant a project specific licence?
  • What are the authorised uses of the BIM? Is it project specific or can the ultimate owner take the information and use it on other projects?
  • When does a party's involvement in the BIM cease? As the BIM develops from a design model to a construction model, when do the parties cease to have involvement in, and rights to protection of the design, in the BIM?

Confidentiality agreements could encourage participants to share information

For a BIM to be effective it requires each project discipline to share all design information openly. Including a project specific confidentiality agreement at tender stage would go a long way to ensuring open discourse by all parties from the outset of the project while protecting against the dissemination of sensitive design information.

Collaboration and data input management - who is responsible for spotting problems?

The success of a BIM is arguably dependent on the efficient management of input into the BIM by each stakeholder and the identification of design clashes and inaccuracies. Being the person responsible for managing that process carries significant risk and the parties should carefully consider whether that BIM manager should be a representative of either party or an independent project manager.

Do your insurance arrangements cover your use of BIM on a project?

Have you discussed your use of a BIM on a project with your insurer? Whether as a design consultant or contractor, you may be exposed to claims for defects in a design incorporated in the BIM which your current insurance arrangements may not cover. Similarly, whoever is managing the BIM should also have appropriate professional indemnity insurance. After investing significant resources into the development of a BIM, any potential loss of design or documentation should be covered for all parties involved.

Time and cost

Should the dates and activities in the BIM take precedence over those in a wider contract program? Where possible, the BIM should be backed down into the contract program.

Should specific activities in a BIM constitute a direction? For example, where a design consultant who is not novated to the principal contractor inserts an amended design into the BIM, is that principal contractor bound to comply with that amended design?

Use of BIM is inevitably on the rise

In countries like Singapore, Norway, UK and the US, where government has led the way for the adoption of BIM by announcing an intention to adopt the use of BIM in centrally procured public construction projects, the awareness of BIM and its incorporation into the industry have increased. Following the release of Australia's own BIM initiative report in June last year, it is likely that Australia will follow a similar trend.

To ensure that the benefits of BIM's collaborative approach are not wasted, the parties to a project need first to agree on the rights and obligations of all BIM stakeholders to ensure efficiency and to avoid disputes.

Nick Crennan Lindsay Prehn
Construction and engineering
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Lindsay Prehn
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.