Speaker: Owen Delaney

1. 1Owen Delaney
BIM and the Law

2. 2Owen Delaney
Introduction
The mere formulation of a problem is far more often
essential than its solution, which may be merely a matter of
mathematical or experimental skill. To raise new questions,
new possibilities, to regard old problems from a new angle
requires creative imagination and marks real advances in
science.
Albert Einstein

3. 3Owen Delaney
Introduction
BIM Policy through a Legal Lense
BIM in Construction Contracts
The Future of BIM, legally speaking

4. 4Owen Delaney
BIM Policy through a Legal Lense
Is there a need for a BIM law or policy
in Qatar?

5. 5Owen Delaney
Law vs Policy
Should Qatar establish a BIM
framework by Policy or by Law?
Law – mandatory!
Policy – mandatory?

6. 6Owen Delaney
BIM by Law
Should Qatar create legislation for BIM?
Why legislate?
Project cost savings?
Enhanced Project Delivery?
…………...Industry Facilitation
What would a BIM law look like?
Mandated use of BIM?
Mandated level of BIM?
Defined BIM Processes (data drops, LoDs)?
……………Industry Coercion
Should the law seek to go further?
Enable industry framework for BIM?
……………Industry’s Aspirations

7. 7Owen Delaney
BIM by Law
What type of legislation?
Coercive Legislation
– to mandate or prohibit a course of action
Facilitative Legislation
– to enable a particular course of action
Aspirational Legislation
– to encourage a particular course of action

8. 8Owen Delaney
BIM by Law
Coercive Legislation
Generally required to respond to a fundamental need of society
- “Thou shallt not kill”
- “Thou shallt not exceed your LoD in Data Drop 4” ???
Coercion predominantly functions through fear of consequences
of breach – jail, fines
Construction law context – breach of contract, damages etc.
Is the need for a BIM law that great?

9. 9Owen Delaney
1. The government and its officials and agents as well as
individuals and private entities are accountable under
the law.
2. The laws are clear, publicised, stable and just, are
applied evenly, and protect fundamental rights,
including the security of persons and property.
3. The process by which the laws are enacted,
administered and enforced is accessible, fair and
efficient.
4. Justice is delivered timely by competent, ethical,
and independent representatives and neutrals who
are of sufficient number, have adequate resources, and
reflect the makeup of the communities they serve.
Legislation Process
Substantive
Content of Law
Administration
of Law
BIM by Law
Coercive Legislation → Rule of Law
Four universal principles (World Justice Project definition)

10. 10Owen Delaney
BIM by Law
Facilitative Legislation
Example – Unfair Contract Terms Act 1977
Article 5 “guarantee” of consumer goods
In the case of goods of a type ordinarily supplied for private use or consumption,
where loss or damage –
(a) arises from the goods proving defective while in consumer
use; and
(b) results from the negligence of a person concerned in the
manufacture or distribution of the goods,
liability for the loss or damage cannot be excluded or restricted by reference to any
contract term or notice contained in or operating by reference to a guarantee of the
goods.

11. 11Owen Delaney
BIM by Law
Facilitative Legislation for BIM?
- If contract is silent, ownership of the BIM Model vests in the Employer
- If head contract includes a BIM Protocol, it is implied into each Subcontract
(unless expressly excluded)
- Implied intellectual property licence between project participants
Aspirational Legislation for BIM?
- Tax breaks for BIM Projects
- Insurers cannot seek to rely on cover exclusions on the basis that they
were not expressly informed the contractor is carrying out a BIM project
- PI Policy renewals imply certain BIM-related issues

12. 12Owen Delaney
BIM by Policy
Who drives the policy?
Govt? Industry?
Who benefits from the policy?
Employer? Contractor? Insurance Co?
Should the policy become law?
To what level should the courts enforce?
Line between policy and law – Tantamount to legislation?
What do you need for a policy?
A proposal? A statement? An agreement?

13. 13Owen Delaney
Status Quo
If it ain’t broke…
BIM law already?

14. 14Owen Delaney
Status Quo
Law No. 22 of 2004 (the "Civil Code”)
Article 171(1): “the contract is the law of the contracting
parties, and it is not permitted to revoke or
amend it, except by agreement of both parties or
for reasons prescribed by the law”
Article 154 (1): “A contract may contain any condition that is
agreed by the contracting parties, if it is not
prohibited by law or contrary to the public order
or morals”

15. 15Owen Delaney
Status Quo
Under Article 171(1), a BIM Protocol in your contract will become the law
between the Parties – i.e. cause of action shall arise out of breach of BIM
Protocol
…but
In the absence of Facilitative Legislation, more careful drafting and
attention to procurement documents is required (e.g. design subcontract
fails to incorporate BIM Protocol)

16. 16Owen Delaney
Policy Conclusion
Coercive Legislation
Necessary?
Effective?
Process?
Facilitative Legislation
Should only address specific legal needs of BIM
Neutral perspective
Aspirational Legislation
Government Agenda

17. 17Owen Delaney
BIM and Construction Contracts
BIM and Contracts
Insurance
Intellectual Property

18. 18Owen Delaney
BIM and Contracts
Implied BIM vs Express BIM
Implied BIM – Interfacing Clause
“The Contractor shall be responsible for checking, verifying and approving detailed designs of
Licensors as provided by or on behalf of the Employer to the Contractor as if its own and take full
responsibility and risk in relation thereto, and shall ensure and be responsible for the proper
interface of such designs with the Contractor's detailed designs and other requirements as
detailed in the Exhibits”
Express BIM – BIM Protocol and Enabling Clause
“The Employer and the Contractor shall:
(a) comply with their respective obligations set out in the BIM Protocol;
(b) have the benefit of any rights granted to them in the BIM Protocol; and
(c) have the benefit of any limitations or exclusions of their liability contained in the BIM
Protocol.”

19. 19Owen Delaney
BIM and Construction Contracts
Express BIM – BIM Protocol
What is and who owns the BIM model?
What are the responsibilities of the BIM Information Manager?
Does the party managing the model assume additional liabilities and
risk?
What happens if you exceed your LoD?

20. 20Owen Delaney
Insurance
≤ Level 2 BIM – PI Policies
“The overarching response to the consultation from insurers has
been that there are no issues with level 2 BIM which are sufficiently
serious as to require coverage restrictions for consultants which use
it, nor will its use, all things being equal, materially alter the risk
profile presented by a consultant, and therefore the premium
implications will be minimal.”
CIC/BIM INS First Edition 2013

21. 21Owen Delaney
Insurance
Is the PI policy arranged on a “legal liability” (or civil liability) basis?
Does your PII policy contain any exclusions for “express guarantees”?
Are there any specific clauses dealing with document retention?
Does the policy contain any enhanced “loss of documents” cover
and, if so, are there any enhanced storage requirements?
Hosting the BIM environment?

22. 22Owen Delaney
Intellectual Property
Who owns the Model?
Who owns the information in the Model?
Who has access to the Model?
Who can use the Model?

23. 23Owen Delaney
The Future of BIM, legally speaking
Essence of Construction Contract = Risk Allocation
Essence of BIM = Co-operation and Collaboration
Answers on a postcard, please?