i-law

International Construction Law Review

INTRODUCTION

HUMPHREY LLOYD

DOUGLAS S JONES

The law’s traditional role is to set rules which society has recognised as necessary for its well-being. It therefore tends to take its time to adapt to changed requirements, especially technical innovations. It can deal well with the tangible, both movable and immovable, but it has had difficulties in defining rights concerning the intangible. A recent example has been the arrival of the computer. Existing law can easily be applied to hardware but there have been problems with software. So, too, with contracts. The language of contracts, even in the construction industry, has not always matched what constructors want, whether architects, engineers, contractors, subcontractors or suppliers, at least in terms of providing definition in language which is intelligible both to the lawyer and the non-lawyer. Our first article (at page 262) is about “Contract Issues in the Use of Construction Building Information Modelling”. It is by Kimberly A Hurtado and Patrick J O’Connor, Jr, both of whom have grappled with the arrival of Building Information Modelling (BIM), itself an extension of computer-assisted design (CAD). BIM moves from the two-dimensional to the three-dimensional. With BIM, data-rich or intelligent objects, referred to as elements, are incorporated into the model and made capable of providing further information about themselves in a variety of ways that include, but are not limited to, two-dimensional drawing sheet schedules and three-dimensional visualisation. The arrival of this new technique creates challenges to the legal community, as the authors point out “to assist in developing meaningful contract terms … given the speed with which it has appeared on the construction scene, the lack of industry standards about what BIM is and does, disagreements about the process best used to generate model design and what deliverables should be deployed from the completed model”. On the other hand BIM is not by any means yet so prevalent that the legal community will be running fast to catch up. This paper is of great value, in that it comes before many of us have encountered BIM in practice, and it will help to prepare for that encounter.
The paper is, necessarily, an introduction. More needs to be known about the application of BIM in practice and more discussion needs to take place about the form in which contract provisions are to be developed. However, the authors pose a number of key questions in their paper which require to be confronted analytically and constructively: What are the purposes for which virtual modelling will be used? What is the schedule for deliverables from the model? How and to what extent will data from one model be transferred or incorporated into other models? How is the modelling process to be managed? What is the level of reliance that can be placed on model information? Will the model be used after the construction is completed? We look forward, in future editions, to receiving the answers of others to these and other questions. In the meantime, we are grateful to the
[2008
The International Construction Law Review

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