BIM law and regulation in Chile

To date, the private sector has been leading the adoption of BIM in Chile. The National BIM Survey (2016), conducted by the University of Chile with the collaboration of all leading Chilean professional associations, shows that over half (53%) of the total respondents are BIM users, with 22% of the overall participants being regular users (having used BIM on most of their projects in the last 12 months). These results represent a significant increase in the utilisation of BIM if compared to the survey pursued by the same institution in 2013 (where only 39% of the total respondents were users).

Nonetheless, in common with most jurisdictions during the early stages of BIM’s implementation, its utilisation by these users to date is limited only to its simple features. What this means is that the private sector has identified this technology as a proficient tool in reducing costs in the several stages of the project from an individualistic perspective and consequently, allowing them to be more competitive in bid projects and obtaining better margins. However, this does not achieve the final purpose of BIM which is to provide efficiency to projects during their complete lifecycle by coordinating the relevant parties and by generating savings for the project as a whole.

With this in mind, the Chilean government produced its BIM strategy in 2016, by delineating jointly with relevant parties in the private sector and professional bodies the basis for a wider implementation of BIM in the construction market. The agreement, dated 28 January, 2016, has as the main purpose to make joint efforts in increasing the sector productivity by the implementation of BIM. Amongst other measures, the agreement established that the Chilean Government would seek to start requiring fully collaborative BIM for all public projects by 2020, with the belief that the private industry will also require BIM gradually following the Government policy. In addition, an independent institution was created (BIM Forum Chile) to evaluate the sector and to promote the education of specialists in using the full range of possibilities that BIM has to offer.

Furthermore, on 13 May 2016 the Chilean Government and the United Kingdom Department for Business, Innovation and Skills (BIS) agreed on a Memorandum of Understanding for the collaboration on the development of technological platforms (BIM) for increasing productivity and innovation in the construction industry in Chile. Also, they agreed on finding the measures to encourage the commercial relationships between the construction parties in both countries.

In Chile, specialised standards for construction are issued by the INN (Instituto de Normalización Nacional), and to date no regulations making BIM mandatory have been issued. Training in BIM is at an initial level of development in the Chilean educational system. Practically half of the professional and technical training institutions include BIM content in their undergraduate programs, which are taught with a very technical approach, focused on the modelling of three-dimensional projects and the use of specialized software.

More comprehensive courses are only at the postgraduate level, teaching BIM collaborative work and the development of BIM project management skills, essential subjects for the correct execution of a project in BIM.

So far, parties have not required major amendments in contracts due to the implementation of BIM. However, it is foreseeable that significant issues may arise in contracts once the Government’s plan enters into effect in the coming years. This might include amendments to at least the following common provisions of building contracts:

• Definitions.
• Description of parties’ roles.
• Design liabilities and IP rights description.
• Sub Contractor’s regulation.
• Information required schedules.
• Interfaces regulation.
• Hierarchy provision.

This also requires to be stepped down into subcontracts to ensure that the whole supply chain is under the same obligations.

The Chilean construction market does not use national or international standard forms as is the case in other jurisdictions. Therefore, each contract is negotiated and freely agreed based on the autonomy of the will, enabling the Principal to require the use of BIM in certain projects or at least in regards to technical inspection of work sites (ITO, for its acronym in Spanish), in which case special clauses with these requirements are included.

In Chile there is an Association, BIM Forum Chile, to which Universities, the Chilean Chamber of Construction (Cámara Chilena de Construcción), as well as the most important companies of the private area of Construction and real estate, and those that work with the Production Development Corporation (La CORFO), which is a state agency, all belong. Together they carry out meetings, seminars, publications, training courses and are a meeting point that keeps all interested parties in BIM networking with the system and training providers.

To date, there is no Protocol in Chile given that the construction market in Chile has mainly adopted “lonely BIM”. Consequently, no Protocol has attempted to provide the coordination and integration regulation that more advanced BIM levels require. As mentioned in FAQ15, there is a general consensus among the construction market that a National Protocol would have a positive impact on the evolution of BIM.

To date, there is no Protocol in Chile given that the construction market in Chile has mainly adopted “lonely BIM”. Consequently, no Protocol has attempted to provide the coordination and integration regulation that more advanced BIM levels require. The BIM Forum Chile association is currently trying to group and organize BIM practice and strategy in terms of construction, all due to its recognized efficiency in the construction, development and later stages of the project.

The construction market in Chile has, to date, mainly adopted “lonely BIM”. Consequently, consideration has not yet been given to the concept of the BIM Manager role. However, certain professional services firms specialized in the use of the program are subcontracted by construction companies.

In the future, it is expected that Principals require the use and management of BIM for all professional services firms specialized in the supervision of the development and quality of construction and building project, known in Chile as Office of Technical Inspection of Work Sites “ITO”.

Due to the simple application that users have given to BIM, which has not generated material change to the risk profile of projects, insurance policies have remained with no major amendments. Nevertheless, it is possible that this will vary once the Government strategy enters into effect and consequently parties use further BIM levels.

The design liability is a matter to be taken into consideration once the involved parties include more complex BIM levels in their projects. Meantime, in Chile, it is not a matter of concern given the limited application of BIM and the lack of designers overlapping in using BIM.

Given that the implementation of BIM in Chile is in its early stages, there is no information available about adverse consequences to ownership rights in designs or data.

Nonetheless, following external experience in the utilisation of BIM, it is expected that issues may arise regarding ownership. Hence, it may be necessary to include specific provisions in the building contracts to avoid any adverse consequences derived from BIM.

There is no information available to date on the position related to this in Chile. However, as we pointed out BIM Forum Chile is working together with the different players in the construction market to standardize criteria in the application of BIM.

The warranties and indemnities have remained similar to date, due to the simple application of BIM. Nevertheless, it is possible that this will vary once the parties use further BIM levels, which may imply a different regulation of warranties and indemnities, having the necessity of including the utilisation of BIM, the level of coordination required and ownership rights, among others.

The Chilean Government strategy indicates that BIM will result in a reduction of the length of time required for construction by efficiently coordinating the resources in a project. However, the programme is still in its development phase, so the Government has not set out the exact time reduction target that it is seeking to achieve.

From a legal perspective, there is a possibility that BIM might have an adverse impact on the length of time required for the contract drafting period, especially considering that the impacts of BIM could mean that several Contractors are required to agree to certain contractual terms at the same moment.

Linking the early design phase of a project and its end use is one of the purposes that the Chilean Government has set as the core in the future implementation of BIM, especially in the field of public works tendering for infrastructure such as hospitals, government buildings, etc. The Public and Private sectors have identified that there is a need to tie the phases of the project together by implementing BIM as a follow-up tool to use during the various phases of the building, including the occupation stage.

The suggestion is that building contracts may need to be adjusted to allow the identification of the objectives and the inclusion of the completion tests from the design stage in a manner that is coherent with BIM application later in the life cycle.

Further, the coordination between the involved Contractors has a significant role in achieving the total capacity that BIM offers, and consequently, the addition of specific regulation of interfaces and overlapping is advisable.

The University of Chile carries out the National BIM Survey.

In the 2016 report, the report mentioned the following as key findings:

• Over half (53%) of all respondents are BIM users.
• Autodesk Revit ® is the dominant software tool on the market, with 76% of users and 47% of exclusive users.
• BIM is used for all type of projects, with small buildings (<<2,500 sq. ft.) most frequently (51%)
• BIM is mainly used for visualisation during the design process and the production of construction documents.
• Construction-phase BIM capabilities (scheduling, cost estimation, construction monitoring) are almost never used.
• Most users (36%) first draw their projects using traditional CAD tools and then build a BIM model.
• Economic benefits (perceived ROI) increase proportionally with the level of use of BIM.
• The satisfaction level with BIM is 7.4 on a scale of 1–10.
• About a third (31%) of non-users know nothing about BIM.
• The majority of users (68%) said that their use of BIM within the next 12 months will be higher or much higher than today.
• Most of the actual users (71%) agree that it is imperative to generate a National Protocol.

Further information is available at the BIM Forum Chile website: http://www.bimforum.cl/

The Chilean Government’s “BIM Plan” establishes the future vision for reforming the construction sector. The Government’s vision is to continue increasing the number of BIM users in the different sectors, together with deepening the tools that BIM users are implementing. In order to achieve this, in addition to the technical aspects, it is essential to get the legal framework right.

The major focus of the document is a wish to improve the process of construction and its results by incorporating new capacities and technological tools like BIM. This will require the education of specialists to manage the full range of possibilities included in BIM prior to its implementation in all public projects (expected to begin in 2020). Additionally, a contractual framework is required to face the inherent complexity that a collaborative system has in relation to design liability, data protection and ownership rights.

The Government’s plan includes the creation of institutions to ensure that the BIM Plan is sustainable in the future, and deeper levels are achieved by all the relevant actors. For that purpose, the Chilean Ministry of Public Works and Ministry of Housing are developing the necessary variations to its institutions to be prepared for receiving new methods. In the same sense, the BIM Plan includes the idea of capturing information from one project to be applied in the future, so the creation of a national archive is fundamental to capture the performance of buildings.

From the legal and contractual perspectives, the development of new structures is fundamental to achieve complete integration of BIM. This must not only include the coordination obligations of parties in the project in a different perspective as implemented to date but also the inclusion of the operational phase in contracts. To date, there has been less focus on the legal aspects but it is a discussion that it is going to arise in the future.