17 Northumberland Road, Dublin 4 Partners Anthony D. F. Hussey Tel: +353 1 668 1966 Malcolm Fraser Fax: +353 1 668 7612 __________ Email: husseyfraser@securemail.ie Anne Barrett D.E. 71 Siobhan Kenny www.husseyfraser.ie John Browne

Associate Solicitor Conor Connelly Assistant Solicitors Simon Fraser Shane O’Brien Jennifer Egan Andrea Sullivan

Legal Executives Cliona Grimes Derek Eastwood Mark Bale

BIM IN CONSTRUCTION CONTRACTS IN IRELAND

(OR DOES BIM REPRESENT AN IMPORTANT OPPORTUNITY FOR THE IRISH

CONSTRUCTION INDUSTRY?)

By Simon Fraser

A paper presented to the Construction Update Meeting held on

27th November 2014

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1. INTRODUCTION

Progressive contractors are claiming significant benefits in construction management efficiency through the implementation of BIM(1) or Building Information Modelling. While these contractors note that the cost benefits to the project budget alone justify the implementation of BIM in the field, it is also worth noting that the UK Government (in its UK Construction Strategy 2011)(2) has mandated the construction industry in the UK to use BIM on all public projects by 2016. In ‘Growth Through BIM’ by Richard G Saxon, CBE (3) the current perceived leadership in the UK in advancing a BIM strategy is seen as being a key factor in promoting the recovery of the UK construction sector and in enabling UK industry to compete more effectively in export markets. The benefits of BIM are stated to include reducing the cost, time and uncertainty of design, construction and the operation of buildings, by making previously laborious, manual and repetitive processes quicker, automated and more accurate. In addition, the adoption of BIM processes promotes cooperation and collaboration between the parties involved in procuring, delivering and managing construction projects. In Ireland, in 2007, the Government introduced the Public Works Contracts (PWC) suite for the procurement of all public sector works. After 7 years of working with the PWC suite of contracts, these contracts have now been identified as a barrier influencing the prospect for recovery of the construction industry in Ireland (6). Action No. 16 of the Forfás report (page xxii) recommended a review of the of the current contract for Public Works by both Government and Industry stakeholders with a view to implementing any changes required to ensure fair and reasonable terms for all parties involved. This review is currently underway and, in submissions, industry stakeholders have called for the PWC to be revised to include a more collaborative and co-operative approach. It is submitted that the current ongoing review of the PWC suite represents an opportunity to move the PWC suite of contracts towards more collaboration by the various parties using BIM. This paper suggests that an early step can be taken in that direction by adapting the current standard form contracts to include the CIC BIM Protocol (or something similar).

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2. WHAT IS BIM?

The term “BIM” is inexact, however, it is now generally taken to refer to a wide and widening suite of working methods and processes which become possible when the built environment industries move to adopt the full benefits offered by digital data and the use of artificial intelligence. As stated by Saxon(3), “Whilst 2D CAD allowed traditional practice to become more efficient, BIM suggests new practices altogether.” BIM is not a “one size fits all” solution but rather is the increasing use of digital data technologies with increasing levels of integration. It represents the adoption by the construction sector, some would say at long last, of technologies that have been adopted by other industries, such as manufacturing, many years ago. One useful definition of BIM from the National Building Specification (UK) is: “A rich information model, consisting of potentially multiple data sources, elements of which can be shared across all stakeholders and be maintained across the life of a building from inception to recycling” [Emphasis added]

BIM is generally represented (see Bew/Richards diagram below (Figure 1)) as showing a progression from Level 0 (CAD) through Level 2 (with federated, separate digital models) to Level 3 (“iBIM”, a fully integrated model). A fully integrated model implies that each contributor’s input during the construction process is merged in a single, consistent model environment held on the Web, whilst, at the same time, all contributions can be identified, tracked and audited.

Figure 1: BIM Maturity Levels

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Figure 2: BIM Level 2 – Sharing Models for Coordination Review

Site/Civil

Model

Architectural Model

Structural Model Services Model

Services Model

3D Coordination

4D

Sequencing 5D

Cost Control

6D Sustainability Analysis

7D Facilities Management

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Benefits of BIM Many studies have been carried out in order to try to analyse and quantify the benefits. One such recent study was the UK Government trial project at Cookham Wood. The project title was “Cookham Wood Youth Justice Board New Build Young Offenders Institution”. The Employer was the Ministry of Justice. The main contractor was Interserve and the lead designer was Arup. The project value was £20 million (including construction costs and fees). The contract was procured under the Project Partnering Contract 2000 (PPC 2000) (Association of Consulting Architects). The impacts of BIM on the project were reported by Professor David Mosey in a recent paper to the Centre of Construction Law and Society of Construction Law(11). The final report was recently published on the HM Government website (www.gov.uk/government/publications/procurement-trial) and the headline benefits are stated as “Cost savings achieved: 20%” and “Increased cost and programme certainty, innovation and prospective operating costs”. The overall assessment concludes as follows:

“The assessment of the Trial Project Support Group at this interim stage is that there is clear evidence that the agreed collaborative engagement by all parties involved in the project has achieved significant cost savings and other added value. The processes and protocols for productive collaboration have been embraced by the entire team, including a willingness to offer and share innovative solutions that have enhanced the project delivery and future asset performance”.

The lessons of the Cookham Wood trial project are now to be applied to a new Ministry of Justice project with a project cost of £250M at North Wales prison (Wrexham) (the largest prison in Europe). In addition, following a review, the UK Government announced that BIM had contributed in saving the Government STG£1.7 billion in 2012 on major projects, noting that Secondary School buildings in the UK now cost 40% less through better contracting and innovation (4). Stephen Kelly, Cabinet Office Chief Operating Officer, noted that “It now costs 40 per cent less to build a secondary school in the UK, both through better contracting and innovation”. The important role of government was highlighted by Chloe Smith, Minister for Political and Constitutional reform, who was leading the review and who noted that “........because we are such a large client we are able to encourage the industry to do it a bit differently and we see the industry responding, with things like BIM.” As stated policy, the UK Government is expecting a 20% efficiency stretch in capital expenditure alone (not including operational savings) from its initiative to mandate BIM in public procurement by 2016. A recent study in Denmark (the Danish openBIM study (2012) (www.buildingsmartnordic.com)) reported increased construction productivity by 70%, reduction in bid price by 30%, reduction in design faults found on site by 90% and reduction in cos of FM/Operation by 20%.

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The following experiences have also been recently reported:

View of a property developer in central London (Great Portland Estates (12)):

1. Significant time saved. 2. Early collaboration with contractor. 3. Improved sequencing.

Views of two Contractors in Ireland (BAM(13) and Clancy Construction(12)):

1. Savings in site logistics e.g. crane positioning. 2. Reduced waste of materials. 3. Benefits of off-site fabrication e.g. Steel reinforcement. 4. Better collaboration with Sub-contractors and architects. 5. Competitive advantage.

View of an international property manager (Accent Property(12)):

1. Improved asset management during property life cycle. 2. Improved reporting to institutional/investor clients (building owners). 3. Building ‘ready for sale’ at any time.

Collaboration As noted above, one of the key benefits of a BIM-enabled approach is that collaboration across the supply chain is supported and rewarded by each of the parties having a fuller and more up to date picture of the progress of the works. As noted by Saxon(3), by providing better visualisations of the works to be carried out and by encouraging cooperation and coordination in the field it is also expected that the full adoption of BIM will result in far lower levels of conflict in the construction process. With the UK Government mandate now in place, it is instructive to recall that in 1994 a joint UK Government and Industry Review into inefficiencies in the UK Construction Market led to the publication of the Latham Report (5). The Latham Report concluded that poor relations and distrust amongst participants in the construction industry were endemic and the recommendations of the report focused on the management of the interfaces across the participants in the project. The recommendations as to contract conditions were supportive of a partnering approach. In the context of the Latham Report, partnering is used as a generic term embracing a range of approaches aimed at establishing joint working and co-operation at varying degrees of formality. In Ireland, a paper entitled “BIM: An Overview of the Process from an Irish Construction Management Perspective” by Paul Stewart (irishconstruction.com (2014)) reports the following advantages of Collaboration as against traditional Contracts.

1. Promotes Flexibility v Promotes Rules. 2. Target Cost Estimates v Fixed Price/Lump Sum.

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3. Target Cost Adjustments v Change Orders. 4. Waive Liability Claims v Shift Liability Claims. 5. Serves as a Constitution v A Draconian Code. 6. Guides Behaviour v Dictates Behaviour. 7. Rewards Collaboration v Punishes Collaboration.

PI Insurance In relation to disputes, the “Best Practice Guide for Professional Indemnity Insurance when using BIM information models (CIC/ BIM INS First Edition 2013)” notes that:

“Indeed there were very good reasons why the use of such an environment could reduce the risk of claims arising, particularly those claims which only become apparent when the project is on site. The fact that an opportunity exists to model the “as built” project in some detail, and in 3D, was considered a potentially powerful risk management tool. Insurers’ comfort largely stems from the fact that, under level 2 BIM, there is sufficient detail to ensure that the lines of responsibility are clear and that models passed on to the Information Manager using the disciplines of standards such as PAS 1192-2 can be shown to be a particular consultant’s work.”

The report does however stress that the Level 3 BIM environment raises very different liability issues which require further consideration. Progress in the adoption of BIM Outside Ireland The adoption of BIM across the world is well established in the US, Middle East, Australia and Europe (e.g. Norway, Finland and France). In the US the US General Services Administrator (which provides office space to the federal Government) mandated BIM in its work in 2007. In Europe, the regulatory environment is also changing. The EU Procurement Directive (Directive 2014/24/2013) was published on 28th March 2014 and opens public procurement to BIM. Article 22(4) states: “4. For public works contracts and design contests, Member States may require the use of specific electronic tools, such as building information electronic modelling tools or similar....”. This development can be seen as an opportunity for public clients to benefit by including BIM in the procurement process. In addition, in the UK and Ireland, the EU Construction Products Directive (CPD) became mandatory from 1st July 2013 with the adoption of the Construction Products Regulations 2011. The CPD calls for consistent and better product information to be made available with construction offerings. As part of its policy to encourage the adoption of BIM, the UK Government has issued guidance to product suppliers on how to provide product information for use in a BIM environment. This means that material specifications and properties can be fed directly into BIM models on a project and accurate calculations and predictions such as the temperature efficiency and carbon content of the building as well as automatic building regulation approval may become possible.

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As noted above, from 1st

July 2016, all UK government building procurement to require at least BIM Level 2 (to promote widespread adoption). The UK government has made a large investment in this programme and the following selected documents have been published and are available (www.bimtaskgroup.org):

1. BSI has published PAS (Publicly Available Specifications) 1192-2:2013 “Specification

for information management for capital / delivery phase of construction projects using

building information modelling”. Clients have a role in defining Employer’s Information

Requirements (EIR). (www.bsigroup.com)

2. PAS 91:2013 “Construction Prequalification Questionnaires”. (www.bsigroup.com)

3. PAS Employer’s Information Requirements (EIR). (www.bsigroup.com)

4. Best practice guide for professional indemnity insurance when using BIM information

models (CIC / BIM INS First Edition 2013). (www.cic.org)

5. CIC (Construction Industry Council) BIM Protocol 1st

Edition 2013 (www.cic.org)

Contracts There are a number of forms of contract which provide for BIM such as: AIA (2008) Document E202 (US), ConsensusDOCS (2008)(US), JCT Public Sector Supplement, NEC X12 Partnering Option, CIOB Contract for use with complex projects, Association of Consulting Architects PPC2000 (Cookham Wood Trial Project) however the CIC BIM Protocol is drafted for use with existing standard forms. In Ireland In Ireland the implementation of BIM is being led by Contractors who are now choosing to use BIM and requiring their sub-contractors to do so also. Industry stakeholders have indicated support (Government departments, RIAI, Engineers Ireland, etc). The RIAI has adopted PAS 1192:2 for information management. Engineers Ireland has stated that BIM should be incorporated into the Public Works Contracts. Also Enterprise Ireland has noted the ‘transformative potential’(14) of BIM for the construction industry here and is formulating a programme to advance BIM Implementation in Ireland by moving to set up a National BIM Steering Group. Public bodies are starting to request the use of BIM such as the Health Service Executive (HSE), National Development Finance Agency (NDFA), Grange Gorman Development Agency (GGDA), etc. as are corporate bodies such as Intel, Allegan, Kerry Group, etc. In addition, the Computer IT Alliance (CITA) is very active in promoting BIM and Ireland has

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recently secured representation on the BIM working group of the European Standardisation Body (CEN). Difficulties with the Public Works Contracts (PWC): Public contracts in Ireland are now procured under the Public Works Contracts (PWCs) suite introduced in 2007. Whilst this suite of standard contracts does provide for electronic communications and the use of software, it is primarily designed to facilitate traditional contractual relationships. Moreover, the PWC suite of contracts have been heavily criticised due to the fact that, far from placing risk on the party which is best placed to manage it (as was the stated intention), they have moved as much risk as possible away from the Employer and onto other parties (largely the Contractor). In so doing, the PWC suite of contracts has done nothing to assist the recovery of the construction sector of the Irish economy and indeed, as noted by Forfás(6), many would say that the PWC suite of contracts has contributed to continuing recession in the industry. Many believe that the PWC suite of contracts has not delivered on the promises made on its introduction. For example, it was initially suggested that the new suite of contracts would improve outcomes by requiring the employer to clearly set out its requirements prior to contract. In the event, in many cases the employer does still not provide full information and the contractor is left to deal with such shortfalls in information. In 2007, this author suggested that the PWC suite of contracts shifted the contractual balance too far in favour of employers, could lead to increased confrontation and ultimately would not be to the advantage of employers or contractors (8) and (9). It is suggested that this prediction has been borne out by the experience over the intervening years. In addition, it was noted that the PWC suite of contracts contained none of the fundamental features of partnering as adopted in the UK. The PWC process allows for the transfer of risk without the delivery of the required high level of comprehensive information. Clauses relating to programme contingency, consents, delay events, compensation events, claims, arbitration, and background information are unfair where poor quality information is provided. The PWC suite of contracts have not delivered the outcomes promised. The purpose was “……to bring cost certainty and value for money…..” by the transfer of risk on the basis that “…….a high level of comprehensive quality information should allow for a high level of risk to be transferred” (GCCC Guidance Notes April 2006). In many cases this has not happened. The PWC codifies the traditional adversarial method of working and represents a missed opportunity to introduce aspects of partnering, collaboration and co-operation (e.g. PWC Clause 4.1 “Duty to Co-operate” does not contain any sanctions on default). However, BIM can facilitate the early transfer of high quality information.

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The Forfás report (Ireland’s Construction Sector: Outlook and Strategic Plan to 2015 published July 2013) identified PWC as a “barrier influencing the prospects for recovery of the construction industry in Ireland” (page 41): www.foras.ie/publications/2013

Figure 3: Ireland’s Construction Sector: Outlook and Strategic Plan to 2015 Forfás. The Forás report also recognises the significance of BIM for the recovery and development of the Irish construction sector. It states that:

“The implications for Irish construction are clear, unless construction contractors and service providers are able to work in a BIM environment they are likely to find themselves at a serious competitive disadvantage, particularly in overseas markets.” (Page 53) “More importantly, it (BIM) is about efficient sharing of data in a collaborative environment, including all of the partners involved in a building project who contribute to the central model and draw from it.” (Page 53) “In particular, the State as a client of the sector could take a more productive role; not only from the point of view of stimulating increased adoption of BIM through procurement, but also from the point of view of the benefits to be gained from BIM itself through derived savings and efficiencies.” (Page 54)

Initially the Government indicated that the PWC would be reviewed after 3 years but this did not occur (supposedly on the grounds that not enough experience of the new contracts had yet been gained). By 2012 it has been estimated that 5,000 contracts had been entered into of which 3,500 had progressed to final account. The review of the PWC began in January 2014 and is currently ongoing. The submissions of various stakeholders to the Government Construction Contracts Committee (GCCC) propose more collaborative/cooperative working.

“Process rigidities constraining development: Difficulties specifically associated with Government Contracts. For example, industry stakeholders have highlighted difficulties in adequately pricing for risk due to instances where incomplete information has been provided to contractors, and a time consuming and costly claims process (although this is not unique to the public works contract).” (Page 41)

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3. CIC BIM PROTOCOL The UK Government is now pushing ahead with the adoption of BIM and, in order to deal with the legal issues arising, the Construction Industry Council (CIC) has produced a BIM Protocol (CIC/BIM Pro 1st Edition 2003) (“the Protocol”)(7) for use with existing standard form contracts. The Protocol has been drafted to enable the production of BIM models at defined stages of a project. The Protocol is intended to be expressly incorporated into all direct contracts between the Employer and the Project Team members. The text of a contract amendment, which expressly incorporates the Protocol into direct contracts, is included in the Protocol as the Model Enabling Amendment. The Protocol creates additional obligations and rights for the Employer and the Project Team Member (e.g. the Contractor), but does not create additional rights or liabilities between different suppliers.

The CIC Protocol is divided into 8 Clauses and 2 Appendices as follows:

1. Definitions.

2. Priority of Contract Documents.

3. Obligations of the Employer.

4. Obligations of the Project Team Member.

5. Electronic Data Exchange.

6. Use of Models.

7. Liability in Respect of a Model.

8. Termination.

The CIC BIM Protocol can be downloaded at www.bimtaskgroup.com

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Appendix 1: Levels of Detail and the Model Production and Delivery Table. Appendix 2: Information Requirements.

Given the possible uses of data-rich BIM, the Protocol seeks to address areas of concern for information providers. The Protocol uses a general concept of “Permitted Purpose” to define the licensed uses of the models. The Protocol aims to reduce the need for separate electronic data exchange agreements between the project team members by addressing the principal risks associated with the provision of electronic data, in particular, the risk of corruption, following transmission. The Protocol defines the models that are covered which are scheduled in Appendix 1, “The Model Production and Delivery Table (MPDT)”. The Protocol requires the Employer to appoint a party to undertake the “Information Management Role”. The principal responsibilities of the “Information Manager” can be summarised as:

1. Managing the processes and procedures for information exchange on projects;

2. Initiating and implementing the project information plan and asset information plan;

3. Assisting in the preparation of project outputs, such as data drops; and

4. Implementation of the BIM protocol, including the updating of the MPDT. The “Information Requirements” (IR) have been included at Appendix 2 of the Protocol so that project wide information requirements can be expressly incorporated into all Project Team members’ agreements. It is the responsibility of the Information Manager to agree and issue the IR, which should be prepared before the agreements are concluded. The “Model Production and Delivery Table” (MPDT) is a key document, as it both allocates responsibility and preparation of the models and identifies the “Level of Detail” (LOD) that models need to meet at the project stages or data drops stated in the table. The Protocol also defines the priority of contract documents and states that, in the event of a conflict or inconsistency between the terms of the Protocol and any other documents contained in and/or forming part of the agreement, the Protocol shall prevail. The Protocol provides for the granting of sub-licences (and sub-sub-licences) to sub-contractors for the “Permitted Purpose” related to the Project. Clauses and Appendices in the CIC Protocol

Model Enabling Amendment

Incorporates the BIM Protocol into the contractual agreement between the Employer and, for example, the Contractor (the Project Team Member) or between the Contractor and Sub-Contractor, etc.

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Clause 1: Definitions e.g.: 1. Federated Model “…means a Model consisting of connected but distinct individual

Models.”

2. Information Management Role – ‘management of the processes, protocols and

procedures…”

3. Level of Detail – ‘...as specified in Appendix 1…..’

4. Material – ‘....information in any electronic medium prepared by or on behalf of Project Team

5. Member….’

6. Model – ‘....digital representation of part of the physical and / or functional characteristics

of the Project…..”

7. Other Project Team Member – ‘.....any person having responsibilities in relation to

delivery and/or use of Models…”

8. Permitted Purpose – ‘….a purpose related to the Project (or the construction, operation

and maintenance of the Project…”

9. Project Team Member – ‘….the person appointed by the Employer pursuant to the

Agreement…..

Clause 2: Priority of Contract Documents

1. Terms of Protocol prevail

Clause 3: Obligations of the Employer

1 Ensure that Protocol is incorporated in all Project Agreements.

2 (a) Information Requirements and MPDT reviewed regularly.

(b) Appointment of Information Manager.

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Clause 4: Obligations of the Project Team Member

1. Produce the Specified Models (produced by PTM).

2. Deliver the Specified Models.

3. Use the Project Team Models (produced by others).

4. Comply with the Information Requirements.

5. Arrange to incorporate Protocol into sub-contracts.

Clause 5: Electronic Data Exchange

1. No liability of Project Team Member for corruption of electronic data after transmission.

Clause 6: Use of Models

1. Copyright remains vested in the Project Team Member.

2. Licence granted by Project Team Member to the Employer.

3. Licence and Sub-licence granted by Employer in respect of other information.

4. Licences include rights to grant sub-licences on identical terms to others e.g. sub-

contractors.

5. Licences can be revoked for non-payment.

6. No right to amend information provided by others.

Clause 7: Liability in Respect of a Model

1. No liability in respect of any modification or amendment of the material by others.

Clause 8: Termination

1. Main clauses continue to apply following termination of agreement.

Appendix 1: Levels of Detail (LOD) and the Model Production and Delivery Table

(MPDT)

Parties may choose any other appropriate format. LOD definitions (from PAS 1192)

1. Brief

2. Concept

3. Developed Design

4. Production

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5. Installation

6. As Constructed

7. In use

Stage definitions: From Strategy to Operation and End of Life. For each Model sets out Model Originator, Stage for Delivery and Level of

Detail

Appendix 2: Information Requirements

1. Parties may choose another appropriate format. 2. Sets out name of Information Manager. 3. Sets out formats, protocols, co-ordinate systems etc.

Main Points regarding the Protocol:

1. Intended for use with existing standard form contracts.

2. Preserves bilateral relationships. Intended to sit with traditional two-party contracting

scenario (Employer/Contractor).

3. No direct contractual relationships between consultants on the same tier (‘horizontal

co-operation’).

4. Requires detailed, clearly defined, project specific information to be included in the

appendices.

5. Some duties e.g. actual delivery of the models rely on a standard of reasonable

endeavours obligation. Employer may want to strengthen to contractual standard of

reasonable skill and care.

6. Electronic data. No warranty with regard to corruption or unintended

amendment/alteration after transmission.

7. General principle is that Protocol takes precedence over underlying contract.

8. Designers need to feel confident about sharing models with employers, contractors,

etc.

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9. Consistency with underlying conditions of contract should be reviewed.

10. Designed to promote the general uptake of Level 2 BIM. Should be reviewed on a

project-specific basis to ensure intended outcomes.

Adoption of BIM within the PWC With the stakes being very high as, for example, set out by Saxon(3), the question arises as to whether the adoption of BIM in Ireland can be facilitated within the PWC suite of contracts, perhaps with the use of a protocol such as that now proposed in the UK? In this regard, it is submitted that anything that contributes to the more effective and efficient delivery of projects is to be welcomed and may give substance to the somewhat weak terms of PWC sub-clause 1 – ‘Co-operation’. In their paper entitled “Implementing Building Information Modelling in Public Works Projects in Ireland” by McAuley, Hore and West (10), the authors recommend that the Irish Government moves towards the legal mandating of BIM. The authors noted that the GCCC (now PWC) suite of contracts “...are not set up to promote collaboration and effectively through the transfer of risk create a hostile environment.” It was suggested that a “....collaborative approach can be achieved through the re-drafting of the GCCC suite of contracts to include use of BIM technologies”. The paper by McAuley et al suggests that the most effective way of dealing with the barriers to BIM are to have “.....collaborative, integrated project delivery contracts in which the risks of using BIM are shared among the project participants”. The key legal areas to be addressed are identified as being: 1. Digital data protocols.

2. Coordination and reliance.

3. Project responsibilities and risks.

4. Copyright/ use of documents.

5. Contractual privity; waivers and indemnities. This author submits that all of the above key legal areas are effectively dealt with in the Protocol, for example, point 4 above is dealt with in Clause 6 (Use of Models) of the Protocol and elsewhere therein. It is therefore not necessary to completely re-draft the PWC suite of contracts. On the contrary, BIM can be implemented within the existing PWC suite of contracts and the Capital Management Framework (including the PWC sub-contracts and conditions of engagement of specialists) by way of minor amendment and by appending the CIC Protocol (or a similar document).

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4. CONCLUSION The PWC suite of contracts were conceived and drafted in a completely different economic environment and their adoption may be seen as a lost opportunity to move towards a more collaborative model of working in the construction industry. It is submitted that the adoption of BIM and other collaborative tools now could address some of the difficulties inflicted on the industry and the Irish economy by the PWC suite of contracts. The incorporation of the CIC Protocol (or something similar) within the PWC suite of contracts could facilitate a move in this direction sooner rather than later and allow the contractual risks to be allocated and managed in a more reasonable manner. Such a move may also assist in the recovery of the Irish Construction industry and may give the industry a competitive advantage when competing for international business. As the sponsors of the PWC suite of contracts and the ultimate employer for the vast amount of civil engineering and building work currently being tendered in Ireland, the role of the Irish government is key. For example and as a first step, BIM competence could be mandated as a pre-qualification requirement on particular, appropriate public sector tenders. As a small, open, innovative economy with a strong ICT sector, the adoption of a BIM approach in Ireland may stimulate the Irish economy while also finally enabling the government to realise the benefits originally promised by the PWC suite of contracts. It is submitted that there is now an opportunity for the Irish Government to consider the hard experiences of the seven years since the implementation of the PWC suite of contracts and to move forward with a fairer contractual environment which will be of benefit to the economy as a whole. The changes should include enabling the PWC suite of contracts to allow for the adoption of BIM. The time to move in this direction is now. SIMON FRASER 27th November 2014 [Disclaimer: This paper represents the views of the author only and does not purport to be legal advice]

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REFERENCES 1. Irish Building Issue 2 – 2014;

2. UK Government Construction Strategy, Cabinet Office, Government Publications, 31st May

2011;

3. Saxon CBE, Richard. (2013) Growth Through BIM, Construction Industry Council, 25th April 2013;

4. Construction News, 4th June 2013;

5. Constructing the Team: Final Report of the Joint Government and Industry Review of Procurement and Contractual Arrangements in the UK Construction Industry (HMSO 1994) (ISBN 01175299 4);

6. Ireland’s Construction Sector: Outlook and Strategic Plan to 2015, Forfás, (July 2013, page 41);

7. Building Information Model (BIM) Protocol, CIC/BIM Pro first edition 2013;

8. Fraser, S. Does Partnering Offer a Solution to the Public Works Contract Dilemma?, Engineers Journal, Volume 61: Issue 7/September 2007;

9. Fraser, S. New Forms Shift Balance in Public Works Construction Contracts, Engineers Journal, Volume 61: Issue 6/ July/August 2007;

10. McAuley, B., Hore, A.V and West, R. (2012) Implementing Modelling in Public Works Projects, Proceedings of the 9th European Conference on Product and Process Modelling, Reykjavik, July 25 – 27th 2012.

11. “BIM and Related Revolutions: A Review of the Cookham Wood Trial Project” Professor David Mosey, a paper based on a presentation at a King’s College London Centre of Construction Law and Society of Construction Law ‘Open Forum’ in London on 13th February 2014. www.scl.uk

12. As reported at the 6th CITA BIM Event – Wednesday 24th September 2014 at the Royal College of Physicians, Kildare Street, Dublin 2.

13. As reported at the “BIM – Teaming with Opportunities” Conference held on 29th May 2014 at the Aviva Stadium, Dublin 4.

14. “BIM Implementation Forum – Implementation Forum – Inaugural Meeting Key Findings and Next Steps”, Enterprise Ireland, 16th July 2014.