BIM Contracts: The Devil Is In The Details

SW
Schellenberg Wittmer Ltd

Contributor

We are a leading Swiss business law firm with offices in Zurich, Geneva and Singapore, and take care of all our clients’ needs – transactions, advisory, disputes around the world. At Schellenberg Wittmer, we strive to meet your needs by providing commercially focused, dedicated legal advice of the highest quality.
With its vast potential, BIM (Building Information Modeling) is likely to become a standard tool in planning and construction in Switzerland.
Switzerland Real Estate and Construction

 Key Take-aways

  1. With its vast potential, BIM may quickly become a standard tool in planning and construction in Switzerland – which  leads to the question of how to address  the relevant issues in the construction  related contracts.
  2. There is no „one size fits all“ contract template for BIM contracts. BIM contracts have to be custom-tailored  to the specific requirements of the  project at hand.
  3. The critical issues to be addressed are known, but there have not as of yet been established any reliable best practices  or comprehensive industry standards  regarding BIM contracts in Switzerland.

1 Introduction

The growing trend towards digital planning and construction  in Switzerland has led to an increasing interest in and use of  BIM (Building Information Modeling) for the construction of  new buildings. In a nutshell, BIM is a digital method used for  the planning and execution phases of a construction project  allowing the project participants (such as planners, architects,  engineers, employer, etc.) to use digital models of the planned  building for coordination purposes. Not only does BIM enable  to visualize the final project in 3D, it also facilitates cost as sessment and identifying potential „clashes“ between different  work areas (e.g. ventilation ducts and static frame).

With its vast potential, BIM is likely to become a standard  tool in planning and construction in Switzerland. The increasing  interest in the use of BIM in Switzerland raises questions as to  how to address related issues in construction contracts. To  address this, the SIA (Swiss Society of Engineers and Archi tects) has issued a template „Addendum“ (SIA 1001/11:2018)  and related annotations (SIA 1001/11-K:2018), aimed at helping  parties address the use of BIM in their contractual relation ship, as well as the SIA Brochure „Building Information Model ling (BIM) – Basis for the application of the BIM method“ (SIA  2051:2017) laying out the SIA‘s understanding of the BIM  method and the underlying terminology. In addition, other  actors in the Swiss construction industry, such as e.g. Bauen  digital Schweiz, have also published BIM related documenta tion and guidelines in order to assist parties in tackling BIM  related questions and drafting appropriate contractual  documents.

The aim of this overview is to highlight important issues  that need to be considered when drafting or negotiating BIM  related contracts, in view of these existing guidelines and  documentation.

2 Pre-Contractual Phase:  „Let‘s Talk About BIM!“

Before the start of any BIM project, the parties should clarify  their mutual understanding of BIM as a working method.  As there is no „one and only BIM method“, but many ways of  using BIM for a construction project, the parties will need to  define their intended use of BIM, the means and measures  to be implemented and the goals and deliverables to be  achieved.

Should neither party already have extensive BIM  experience and corresponding documentation at hand, the  parties may choose to refer to the SIA 2051:2017 for the  terminology and description of the different ways BIM may  be implemented.

Although the desired BIM method needs to be defined  mutually, it is important that the employer of a BIM project  clearly defines its BIM-related expectations and objectives.  Bauen digital Schweiz, in „BIM Vertrag, Rollen, Leistungen –  Merkblatt“ („BdS-Merkblatt“), suggests that these expectati ons and objectives be defined in a document called „Employer  Information Requirements“ (EIR). The EIR defines the purpose  and goals to be achieved through the use of BIM (e.g. by enumerating the specific use cases, deliverables expected,  etc.). The EIR can be made part of the tender documents for  the procurement of the suppliers.

On the basis of the EIR, the suppliers can then prepare  the so-called „BIM Execution Plan“ (BEP, as suggested in  the BdS-Merkblatt). The BEP sets out the specific use of BIM  for the project in detail. The BEP should, inter alia, identify  the main team members and their BIM-related roles and  responsibilities, the project milestones, the BIM strategy and  implementation goals, the method of work, the specifics  regarding data exchange and model coordination and the  employer‘s expectations in terms of content and quality of  the models used and/or to be delivered. Further guidance on  the BEP can be found in SIA 2051:2017.

As recommended in the BdS-Merkblatt, both the EIR  and BEP should become part of the contracts, as they  contain binding obligations on the parties, in particular on  the suppliers regarding the development and execution of  the project.

In Switzerland, employers usually enter into individual standard  contracts with each project participant, and include specific  BIM-clauses in each individual contract (e.g. by using „BIM  Terms and Conditions“ as an integrated part of all contracts).  Here, the SIA Addendum (SIA 1001/11:2018) may serve as a  helpful starting point. While multi-party agreements have  gained some popularity in other jurisdictions (in particular in  connection with „Lean Methods“ and the „Integrated Project  Delivery“ approach), they are rarely used in Switzerland, due  to the complex setup and the risk that, due to the peculiarities  of Swiss law, such multi-party agreements might lead to joint  liability, which in the eyes of most project participants takes  the „integration“ a step too far.

3 Obligations and Responsibilities:  „Who is to Blame?“

As there is no standard BIM method, there is also little  guidance regarding which party shall bear which responsibi lity. It is thus important that the parties precisely define their  respective contractual obligations.

The content of these obligations will depend on the  roles attributed to each project participant as well as on the works or services to be rendered - and thus different legal  provisions might have to be considered. For example, the work  related to a specific BIM model and its delivery will usually be  governed by the provisions regarding Contracts for Work and  Services (Art. 363ff Swiss Code of Obligations, SCO) whereas  the organization and coordination services provided by the  BIM coordinator will be governed by mandate provisions  (Art. 394ff SCO). This will have to be considered when defining  the appropriate standard of care, areas of responsibility, and  limitations of liability.

If the scope of work includes delivery of a BIM model,  then the parties should also define the specifics and aspects  thereof. For example, if several project participants have con tributed to a specific BIM model, it might be advisable to define  a specific date of delivery applicable to all contributors in order  to prevent the starting of the warranty periods for the different  contributions at different dates.

Furthermore, the BIM coordinator will play an import ant role in detecting possible clashes, inconsistencies and  other defects in the BIM model which might – at worst – lead  to actual defects in the construction project or – at best – be  detected early enough in the process to be remediated in the  virtual model, before the start of the physical construction. The  parties should thus carefully define the role and obligations of  the BIM coordinator - including under whose responsibility he  will carry out his tasks.

 4 IP Rights:  „Ownership – or Rights to Use?“

A BIM model may not only be a valuable tool during the  planning and construction process, but also provide a great  basis for the operation of the building, e.g. as a coherent data  basis for facility management. Furthermore, relevant informa tion contained in a BIM model can – to a certain extent – be  extracted and reused in whole or in part, or even the entire BIM  model might be reused. The parties are thus well advised to  properly address the intellectual property (IP) rights related to  such BIM models – and to define who may use them and for  what purposes.

While the employer might benefit most from full owner ship of all the related IP rights (e.g. in order to use the BIM  model(s) and elements for the building operation, or in similar  future projects without limitations), the other project partici pants such as planners, designers, etc. might be reluctant  to consent to full transfer of the related IP rights (e.g. because  they themselves might want to re-use certain elements crea ted during a BIM project for future applications). The parties  will thus have to find common ground and strike a contractual  balance between full transfer of IP rights, extensive rights to  use (without transfer of the underlying IP rights) and limited  rights to use, possibly custom-tailored to the specific deliver ables and IP rights in question.

On this issue, the SIA-Addendum (SIA 1001/11:2018)  suggests that upon payment of the agreed fee, the employer  shall be granted the non-exclusive right to make limited  use of the results of the work provided by the contractor for  the agreed project only. From an employer‘s perspective,  careful consideration should be given to assess whether this  will suffice. On the other hand, the contractor will have to  ensure that any IP rights granted (or transferred) are in fact  his to grant (or transfer) and do not infringe the rights of any  third parties (e.g. of any sub-contractors). Employers as well as  contractors will thus have to pay close attention to the specific  IP rights granted (or transferred) and any upstream contracts  affecting such grant / transfer.

5 Remuneration:  „BIM for Free – or BIM for a Fee?“

The parties are obviously free to agree on the appropriate  remuneration regarding the various BIM services and are well  advised to specify whether the BIM remuneration is included  in the general project remuneration – or is to be paid on top  of any existing project fees. In order to facilitate the parties‘  discussion, the SIA-Addendum (SIA 1001/11:2018) contains a  number of suggestions on how to address this issue including,  among others, the payment of specific „BIM-fees“ based on  an hourly rate, or the payment of a fixed „BIM-fee“ specified  in advance.

In addition, the use of the BIM method has a material  impact on the amount of work necessary in the traditional  phases of a construction project as described in SIA 102 (pro visions regarding the services and fees of architects) and SIA  103 (provisions regarding the services and fees of civil engi neers). In general, more work is necessary in the early phases  of a project and this should be reflected in the allocation of  the related fee percentage per phase.

6 IT-Aspects:  „Pressing the Right Buttons“

Finally, a number of Information Technology (IT) related aspects  should also be addressed in BIM contracts.

On a more general level, IT-related obligations will have  to be defined and appropriately allocated, in particular regar ding provision of the IT infrastructure and responsibility for  system availability.

On a more specific level, depending on the specific set up of the BIM project and the method of cooperation implemented by the project participants, additional requirements  regarding data security and data protection, data backup  obligations and data access rights should be defined.

7 Conclusion: „With BIM,  There is No One Size Fits All“

Since BIM may be used in a multitude of ways, varying from  project to project, there is certainly no „one size fits all“ con tract template. Rather, the scope and content of BIM contracts  will largely depend on the employer‘s objectives and require ments, the project participants‘ BIM-related abilities, and the  specific setup and circumstances of the project in question.  The critical issues to be addressed are known, as pointed out  above. However, the devil is in the details – and those details  will have to be custom-tailored to the project at hand. The  existing documentation and guidelines should thus not be  seen as „tick the box“ ready-to-use templates, but rather as  checklists and „aide-memoires“ in order to help cover all the  relevant areas.

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.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More