11 June 2020
Introduction
The publication in Hong Kong recently of the "BIM Contract Conditions: Conditions of Contract for Building Information Modelling (BIM)" (BIMCC) is the culmination of the work and review of the Hong Kong Institute of Surveyors in association with the BIM Contract Alliance in response to those construction industry stakeholders looking for contractual guidance when using BIM.
The impetus was driven by the increasing global trend towards the use of digital technologies, such as BIM, on complex projects as well as the active promotion and adoption of BIM by the HKSAR Government (HKSARG).
Background
The genesis of the HKSARG's adoption of BIM can be traced back to the Works Policies Coordination Committee meeting of April 2013 when it endorsed a proposal to adopt an incremental strategy for the adoption of BIM on public works projects, initially by selecting a variety of works to trial the performance of BIM. Fast-forward to 2017 and the HKSARG was committed to the promotion and adoption of the technology in public works projects requiring its consultants and contractors to use BIM in the design of major capital works projects. In December 2019 the Development Bureau Technical Circular (Works) No. 9/2019 was issued in respect of the adoption of BIM for capital works projects in Hong Kong, making it mandatory, with effect from 1st January 2020, that "Capital works projects with project estimates of more than HK$30 million shall use BIM technology" and applying to projects in the "investigation, feasibility, planning design or construction stages". As HK$30 million is a relatively low threshold value, it is anticipated that the number of projects on which BIM is to be used will undoubtedly increase from the beginning of 2020 onwards.
Annex 1 to Circular 9/2019 tabulates 20 specific categories of BIM Use and at what stage of a project the use is to be implemented. So, for example, "BIM Use" is mandatory for "Design Authoring" across the investigation, feasibility and planning, design and construction stages of a project, whereas "BIM Use" is only optional for "3D Control and Planning" during the construction stage of a project, whilst "BIM Use" for "3D Coordination" is mandatory during the design and construction phases of a project. Whilst the stipulated mandatory uses of BIM appear to be clear, the actual definitions of each of the 20 categories are to be found separately in the Construction Industry Council's Building Information Modelling Standards (Phase One) September 2015 at para 1.5.2.1., where the 20 specific categories of BIM Use reflect Annex 1 of 9/2019. What isn't so clear is how each of the BIM uses connect with each other or overlap in practical application, and it's likely that contractors will have to get to grips with the table in Annex 1 in the use of BIM going forward.
BIM Conditions of Contract in UK and Singapore
In respect of BIM standard terms for use in contracts, similar jurisdictions have tackled the issue such as the UK (Construction Industry Council BIM Protocol 2nd Edition 2018), and Singapore (Building and Construction Authority BIM Particular Conditions Version 2.0 2015), but in the absence of clear guidelines in Hong Kong until now, employers, main contractors, subcontractors, and consultants have been at large when it comes to the risks and liabilities when incorporating the use of BIM on their projects. Following the HKSARG's mandatory adoption of BIM as set out above, the BIMCC are a timely development.
BIM Conditions of Contract in Hong Kong
The BIMCC sets out "the obligations, responsibilities and liabilities of the Employer and the Project Participant [essentially anyone other than the Employer entering into the Agreement] related to the production of the Model" (Clause 2.1).
A quick run-down of the BIMCC clauses covers issues such as: the priority of contract documents (Clause 3); the obligations of the Project Participant (Clause 4); digital data exchange and a common data environment for the Project (Clause 5); the appointment of a BIM manager and the Project Participant's team (Clauses 6 and 7); the preparation and implementation of a BIM execution Plan (Clause 8); the use of the Model (Clause 8); the ownership of the IP rights of the Model (Clause 10); and indemnification of the Employer by the Project Participant in relation to infringement (or alleged infringement) of IP rights contained in the Model.
The BIMCC have been developed to ensure that, if properly incorporated, there is consistency in collaboration between the participants. The Guidance Notes set out that the BIMCC are intended to be incorporated into existing contracts (whether professional services contracts or construction contracts) by way of special conditions, and emphasizes that the BIMCC are not a stand-alone contractual document. The BIMCC anticipate that a Project Participant may include those employed directly by an employer such as an architect, engineer, consultant, and main contractor, and for consistency of implementation should also include sub-consultants, or sub-contractors (if the BIMCC are incorporated into the sub-contracts). The use of BIMCC is intended to make common the standard and working methods across all the participants in the project.
BIM Conditions of Contract Availability
The HKIS is encouraging adoption by publishing the BIMCC together with the Guidance Notes free of charge, and the package is available here.
Of course, standard conditions are unable to cover every aspect of BIM use, or the particular situations of every user, which would require adaptation of the conditions to suit any particular purpose. In such circumstances, advice should be sought when modifying any contract conditions, and if you wish to discuss this article or other construction related issues, please contact Chris Short or Vivian Wong.
For further information, please contact
Christopher Short, Partner, Clyde & Co
Christopher.Short@clydeco.com
