BIM law and regulation in Brazil

1. Is BIM Relevant to me?

Both the private sector and public sector in Brazil recognise that BIM could enhance productivity and efficiency in construction and facilities management. As of now, BIM is not well developed in Brazil, but wider adoption in the near future is highly likely. BIM is currently a hot topic in the construction sector, with an active lobby in favour of its implementation and steps having already been taken by the government to introduce initiatives related to BIM.

There have been some relevant projects that have, at least to a certain extent, used BIM, e.g. World Cup stadiums, Olympic Games venues, regional airports, the Museum of Tomorrow (“Museu do Amanhã”), as well as other buildings that were part of the revitalisation project of the port area in Rio de Janeiro.

Unfortunately, it is hard to ascertain to what extent or at which level BIM was used, or what the particular benefits and challenges were that the parties encountered in these projects.

In any event, the high costs associated with the implementation of BIM are likely a significant hindrance to its development in Brazil.

Currently, the adoption of BIM is not mandatory. Nevertheless, the public sector is discussing whether this requirement should be introduced and, if so, how the public authorities should go about implementing BIM.

A recent leading example comes from the state of Santa Catarina, in the south of Brazil, where the government has included BIM as a requirement in one of its projects. The government included experience of or qualification in BIM as one of the criteria for scoring points in the evaluation of bidders.

In the private sector, bigger construction companies might use BIM as an internal project management tool. Architects may also use BIM based on Revit. However it is currently entirely up to each company to decide whether or not investing in BIM is beneficial for their business.

At its current stage of development in Brazil, it is fair to say that the use of collaborative tools within BIM has not taken off because of discussions about who should pay for BIM. Although both the private and the public sector appear to be moving towards adopting or considering the use of BIM, there are different approaches depending on who presents the argument.

The public sector seems to be more focused on understanding the benefits of using BIM and the technical requirements to implement it. So far, there does not appear to be a wider commercial or legal discussion.

The private sector seems to have a better understanding of the technical features of BIM but is concerned about the associated costs and who will pay for them.

2. What do I need to do to my contracts to deal with BIM?

At this early stage, with no clear answer in relation to if and how parties involved in a construction project (whether by choice or by requirement) will adopt BIM, it is hard to say specifically which steps or provisions will be necessary.

However in general terms, specific provisions on BIM will be required to deal with costs, liabilities, interfaces, etc., as well as provisions relating to the management of the model. To date, there are no standard Protocols available in Brazil to deal with these matters.

3. What are the standard form drafting bodies doing about BIM in their contracts?

The Brazilian construction market does not tend to utilise national or international standard form contracts. Although they may resemble international forms and also have certain similarities, each Employer, either public or private, tends to impose their own standard form on their Contractors.

Therefore it will be a matter for the parties, more than for drafting bodies, to decide how they will address the use of BIM in each case. In situations such as these, leading law firms tend to drive the wording of the clauses that eventually become market standards.

4. What are the professional bodies (Architects/Engineers) doing about BIM in their appointments?

It is not common in the Brazilian construction market to have Architects/Engineers in the same role as in the UK. The progress of works is mainly monitored by the Employer’s personnel or by someone appointed by and reporting to the Employer – not independent or impartial.

Therefore, it will be mainly up to Employers to state whether they want the Contractors and/or the lower tiers of the supply chain to use BIM. Then, it will be up to Contractors (Designers, Architects, Engineers) to analyse if and to what extent they choose to accept these conditions.

5. What is the BIM Protocol?

There are as yet no BIM Protocols in place in Brazil.

6. Where does the BIM Protocol sit in the hierarchy of contractual documents?

So far, there is no mandatory rule about hierarchy of contractual documents. Nevertheless, the common practice usually provides that the contract prevails over its attachments.

Therefore, the parties are free to decide about the position of the BIM Protocol. At the same time, it is advisable that the parties are very careful when drafting these provisions, adopting and maintaining a common set of requirements, parameters definitions and standards to avoid inconsistencies and uncertainty. In any case, and in particular for projects involving public parties, we will have to wait until the government’s position on how public projects will deal with the implementation of BIM is known.

There is a chance that some information (like the below-mentioned list of prices in SINAP) is set as a mandatory reference in public procurement and thus will prevail over the contract.

7. Who can be the BIM Manager/Information Manager?

In Brazil, there have not so far, been many discussions about this topic. Nevertheless, as the implementation of BIM develops, this will of course need to be addressed.

When it does, there will be discussions about whether or not the BIM manager should be a third party, what their liabilities will be and who will pay for the costs of BIM management.

It is worth noting that these discussions are likely to take account of the intense involvement Employers tend to have in construction works in Brazil. It is part of the culture in the construction market that Employers, in particular those in the public sector, have a say in various and often extensive aspects of the projects. This cultural aspect may have an impact on the decisions about BIM management.

8. What do I need to do about insurance?

There have not been many discussions about this specific topic in Brazil. Currently, the insurance market has not signalled any changes deriving from BIM.

Nevertheless, as the market for BIM develops, the insurance market will certainly follow. Depending on the contractual structure to be adopted, in particular if the market for BIM evolves to become a multi-party structure, insurers might have to deal with a different allocation of risk to that which is currently applied.

9. Do I need to be concerned about taking on any extra design liability?

In general terms, Brazilian law provides that, unless an agreed exclusion or limitation of liability clause applies, a party who causes damage to another must compensate this other party for the damage caused.

As BIM is a collaborative model, there may be cases where the use of the model by a party impacts what has been or will be done by another. If there is an argument that this impact relates to design, there may be extra design liability which should be addressed in advance in the appropriate contract.

10. Will BIM affect my ownership rights in my design or data?

There have not been many discussions about this specific topic in Brazil. So far, the general rules about ownership rights still apply, which means that, in general terms, the contributors own the data or design they input in the model.

However, there may be discussions about who is the contributor after other contributions have been made over the initial one and as the model develops.

Therefore, in the absence of regulation, it is advisable that parties using BIM include in their contracts specific provisions on ownership rights.

11. What data do I need to ask the Contractor to provide?

The data required will vary depending on the project involved, its phase and contractual structure and on the use to which the data is to be put. In any case, it is important that the data provided meets the needs of the party receiving the data.

12. What is the position re warranties/indemnities and is there any difference in a BIM project?

In general terms, Brazilian law provides that a party which causes damage to another must compensate the other party for the damage caused.

The parties can agree on exclusion or limitation of liability clauses, and can also give warranties and indemnities they find suitable, provided that they deal with disposable rights.

Although there have not been many discussions about this specific topic, more negotiations on these provisions can be expected and it is advisable that the parties in a BIM project pay close attention to them.

13. Will BIM have any impact on planning and length of time required for construction projects?

The market expects that, in the medium and long term, it will reduce the overall length of time for construction projects. There is a chance that planning will take longer, especially in the initial years of BIM implementation, however planning is likely to be more efficient and consequently result in reduced construction time. So a positive impact is expected even from the very early stages.

14. How can I use BIM during the occupation phase of my building?

Some entities in the Brazilian Government consider the occupation phase to be the most important potential application of BIM, noting that the information consolidated in the model is extremely relevant in the long term occupation, operation and maintenance phase.

As a live database of everything that exists in the building, in particular when it is possible to add the element of time in the model, it makes operation and maintenance much easier and less dependent on knowledge acquired by specific people who will likely leave or be unavailable at some point during the life of the building.

16. What will happen next?

The Federal Government is currently running a program called Investment Partnership Program (PPI – “Programa de Parcerias de Investimento”) to boost private investment in certain sectors of the Brazilian economy and improve efficiency by means of better planning prior to the tendering of projects.

There are no specific provisions about BIM, but there are express references to innovation and new technologies, therefore signalling that further steps will likely be taken towards the implementation of BIM in Brazil.

This potential was confirmed in December 2016 by the execution of a Memorandum of Understanding between the Brazilian and UK governments related to information exchange about BIM, including in projects related to the Investment Partnership Program.

Organisations related to the construction industry, like the Federation of Industry in São Paulo (FIESP – “Federação das Indústrias do Estado de São Paulo”) and the National Service for Industrial Training (SENAI – “Serviço Nacional de Aprendizagem Industrial”) are lobbying for an increase in the use of BIM, including by means of the provision of training, the development of libraries and the reduction of taxation of software and hardware.

Following the efforts of these organisations, the Brazilian Technical Rules Association (ABNT – “Associação Brasileira de Normas Técnicas”) published the ABNT NBR 15965 rule on how to define and classify the information to be used in the application of BIM by the industry sectors of Architecture, Engineering and Construction.

In terms of the public sector, the most substantial discussions are headed by the Ministry of Planning, Development and Management (“Ministério do Planejamento, Desenvolvimento e Gestão”) and the Ministry of Industry, Foreign Trade and Services (“Ministério da Indústria, Comércio Exterior e Serviços”). Both of these ministries have recently held seminars dedicated to BIM.

The Ministry of Planning, Development and Management is currently pursuing several BIM-related initiatives including the following:

  • The Brazilian Army has developed a BIM-based system for monitoring the real estate belonging to the Army (buildings and land).
  • The Secretary for the Federal Union Estate (“Secretaria do Patrimônio da União”) intends to apply the Brazilian Army’s BIM technology to monitor the Federal Union’s real estate (buildings and land).
  • The Secretary for the Federal Union Estate will focus the development of BIM for facilities management, recognising that life cycle costs far exceed the construction cost of buildings.
  • The forthcoming update to the Manual for Public Works – Buildings (“Manual de Obras Públicas”) used for construction works awarded by the federal government is likely to provide for the use of BIM.
  • The Caixa Econômica Federal (Brazilian state owned bank) is using BIM to build/review a reference database of prices to be used in public tender proceedings: the National Research System of Costs and Indexes in Civil Construction (SINAP – “Sistema Nacional de Pesquisa de Custos e Índices da Construção Civil”).

There is a Brazilian-European collaborative initiative called Support to Sector Discussion EU-Brazil Phase III (“Apoio aos Diálogos Setoriais UE-Brasil, Fase III”) which encompassed a study named “Experiences Exchange in BIM - Building Information Modelling”.

In December 2016 at the UK-Brazil Joint Economic and Trade Committee (JETCO) meeting, the governments of the United Kingdom and Brazil affirmed “the importance of promoting Building Information Modelling (BIM), in order to increase the productivity of the construction industry and improve value for public money”. At said meeting, the Brazilian and UK governments signed a Memorandum of Understanding and “committed to exchanging information on national strategies for the consistent diffusion of BIM.”