Spring Debate: Will BIM Reduce Construction Disputes?

chartered-arbitrators-northeast-spring-debate-2016As part of our annual “Spring Debate” the CIArb North East Branch considered the statement: “BIM will reduce construction disputes”.  The debate featured arguments from Andrew Croft of Beale & Co and Stephen Hargreaves of Griffiths & Armour arguing for, and Nicholas Baatz QC of Atkin Chambers arguing against.  Both sides were then encouraged to ask questions to the other, and the audience was invited to participate in an animated question and answer session. The event was well attended from a wide variety of consultants, contractors and sub-contractors.

It was noted that this was a topical debate sparking much interest, due to the introduction of the use of Level 2 BIM on all public contracts from April 2016. The discussion started with a brief background as to the nature of Level 2 BIM, before moving onto the eight pillars of BIM and the use of publically available standards, such as the CIC BIM Protocol and NBS digital.

The side arguing that BIM will reduce disputes, made the following points:

  • The obligations and standards attached to contracts will produce a consistent framework and reduce interface issues;
  • BIM will reduce areas of uncertainty and provide both parties with more information, and it should make clash detection easier;
  • Data will be self-checked in the software and will be able to detect the gaps or anomalies the human eye has missed;
  • BIM will provide a clear audit trail throughout the project, shortening the time to get to the critical facts;
  • Defects should be less expensive to solve as the cause and remedy should be readily apparent;
  • The nature of BIM encourages alliancing and partnership, and with Level 3 BIM in particular this involves working with collaborative forms of contract and integrated project insurance. This should lead to an agreement and reluctance for the parties to sue one another;
  • The above is caveated by the need for clear processes and procedures and the willingness for parties to act collaboratively.

Following this, the side arguing that BIM will increase disputes, considered the following:

  • BIM will do little to reduce delay disputes;
  • Are the current standard forms and contracts adequate? The effectiveness of the CIC BIM protocol depends upon whether or not it is correctly completed and incorporated into the contract.  It has been considered to be open ended and there could be boundary issues between the Client and the engineer;
  • On site issues will not be easily eradicated by BIM. The data in BIM (especially regarding timing) has to be accurate to avoid disputes. Data entry will have to be negotiated, there could be a battle over control of the data bank as well as the right to correct disputed data.
  • The software is there to manipulate the data. This creates the danger of more disputes during the course of the contract as software is not infallible;
  • There is clear ideological difference between the collaborative nature of BIM and the competitive nature trying to win work.

Both speakers acknowledged that there were no hard and fast rules and that both appreciated the arguments from the other side.  At the end of the debate, having heard all the evidence, an audience vote was taken and it was believed that BIM would not reduce construction disputes.

We would like to thank Nicholas Baatz QC, Andrew Croft and Stephen Hargreaves for making this a lively and interesting debate; our hosts Shulmans LLP; and to our attendees for coming along and contributing to the discussion.

We look forward to seeing you at the next CIArb NE Event!