Decree No. 10,306/20, enacted on April 2, establishes the use of Building Information Modeling (BIM) in the direct or indirect execution of engineering works and services by the federal government. Although not immediately related to the covid-19 crisis, publication of the decree in the context of the pandemic deserves to be highlighted not only because of the importance of the issue for contracts relating to public works and other engineering services, but also because of the pressing need for emergency construction.

Our firm, represented by the authors of this article, has formally contributed to the technical and legal analyses that underpin the text of the decree during the works in cooperation between the former Ministry of Development (MDIC) and Unesco. This allows us to understand the application of BIM from the outset, both for more efficient construction of hospitals and other public health equipment, possibly as an important tool to fight the pandemic, and to accelerate a form of knowledge with truly transformative potential for the uses and customs in the engineering and construction markets.

What is BIM and what is its legal relevance

In the definition of the decree, the BIM, also called Building Information Modeling, consists of a "set of integrated technologies and processes that allows the creation, use, and updating of digital models for a construction, in a collaborative manner, that serves all the participants of the development, at any stage of the construction life cycle."

The application and requirement of BIM does not inaugurate new concepts and existing contracting arrangements. Building Information Modeling represents, in fact, an integrated way of designing and managing construction in all its phases. It prevents the segregation of information produced, for example, by designers and managers of the implementation, expansion, and rehabilitation of works. BIM promotes communication between the life cycles of construction, from the conception of the project, replacing the traditional forms of engineering and architectural design and making the implementation of public works more efficient in the long term.

The implementation of BIM in Brazil was idealized by the Executive Branch two years ago, with the institution of the National BIM Dissemination Strategy (Decree No. 9,377/18) and the BIM Strategy Management Committee (Decree 9,983/19). Although it becomes binding for some agencies and entities of the Federal Government, and even of states and municipalities contemplated with transfers of funds from these same agencies and entities, as will be seen below, the decree allows for the dissemination of knowledge and, above all, security so that managers may make immediate use of the tool without the fear of being questioned by the supervisory agencies.

Agencies and entities initially covered

The decree is based on the value of legal security: in addition to supporting the decisions of public agents regarding procurement of engineering works and services with the use of BIM, the federal government signals to the players in the engineering and construction industry staggered and long-term scenarios, since BIM will be required gradually, with progressive expansion of its uses for the purposes of direct and indirect execution of engineering works and services. Thus, the markets and the related Government entities themselves will have almost eight months to adapt to the possible effects of the mandate, avoiding surprises.

The first phase of the dissemination of BIM begins to have binding force on January 1, 2021, covering only a few agencies and entities. The decree establishes the effective requirement to adopt BIM for: (i) the Ministry of Defense, through the activities executed in the real estate jurisdictions of the Brazilian Army, the Brazilian Navy, and the Brazilian Air Force; and (ii) the Ministry of Infrastructure, through activities coordinated and executed by the National Bureau of Civil Aviation (for investments in regional airports) and the National Department of Transportation Infrastructure (DNIT), for the reinforcement and structural rehabilitation of special works of art.

In addition to the agencies and entities of the Federal Government directly covered, the gradual use and requirement of BIM will also have effects on agencies and entities of any sphere of government, public consortium, or non-profit entity that enters into, with the agencies and entities covered, instruments of transfer of funds from the fiscal budget and social security of the Federal Government. Thus, state and municipal agencies and entities that receive funds from the Ministry of Defense or the Ministry of Infrastructure (and their related agencies) should also start using BIM in early 2021.

In addition to these covered agencies and entities, and without prejudice to future decrees extending such class of addressees of the respective rules, the decree allows any agency or entity of the Government to apply BIM, in any of its uses, regardless of the stages of dissemination of the methodology.

Mandatory uses of BIM and escalation

The agencies and entities initially covered should publish, within 90 days, an act to qualify the developments, programs, and initiatives of medium and large relevance to the dissemination of BIM, detailing the specifications thereof and the other characteristics necessary for their application in the three phases of dissemination of BIM.

The first phase, which will begin on January 1, 2021, will cover only some uses of BIM, specifically related to the preparation of architectural and engineering plans and related matters concerning new construction, expansion, or rehabilitation considered of great relevance for the dissemination of BIM. This phase will involve: (i) the guidelines for structures, hydraulic installations, heating, ventilation and air conditioning installations, and electrical installations; (ii) the detection of physical and functional interferences between the various guidelines, and the review of architectural and engineering models, for compatibility purposes; (iii) the extraction of quantities; and (iv) the generation of graphic documentation, extracted from the models referred to in subsection I of article 4 of the decree.

On January 1, 2024, the second phase will begin, in which it will be mandatory to use BIM in the direct or indirect execution of architectural and engineering projects and in the management of works related to new constructions, renovations, extensions, or rehabillitations, when considered of great relevance for the dissemination of BIM. It will cover at least (i) the uses provided for in the first phase; (ii) the budgeting, planning, and control of the execution of works; and (iii) the updating of the model and its information as built for works whose architectural and engineering projects have been carried out or executed with application of BIM.

The third phase, to be started on January 1, 2028, also covers enterprises considered of medium relevance for the dissemination of BIM. For the uses provided for in the prior phases, the management and maintenance of the devleopment will be added after its construction, whose architecture and engineering plans and whose works have been developed or executed with the application of BIM.

The decree and procurement of projects and works

The requirement to use BIM in one or more stages of the life cycle of buildings, according to the decree, aims to achieve (i) the direct execution of engineering works and services, i.e., made by the agencies and entities of the Government, by their own means (article 6, VII, of Law No. 8,666/93); and (ii) the indirect execution of engineering works and services, in which the agency or entity contracts with third parties (article 6, VIII, of Law No. 8,666/1993). In the event of contracting with third parties, the respective notice and/or contract will impose on the contractor the obligation to apply BIM, in accordance with the requirements of the decree. In addition, the bid notice should clarify the level of detail of the work expected with the application of BIM.

The decree establishes minimum contractual obligations for third parties that are already usually required, especially in engineering services. The concern was to make it clear that adoption of the methodology does not diminish the obligations of the contractors, aside from demanding that the uses of BIM be effective and exclusively followed in the execution of the works.

The provisions of the decree reflect the normative content of the main laws on public procurement and administrative contracts, from the obligations of the contractors in the uses of BIM to the use of nomenclature and the level of detail and information required for the preparation of engineering and architectural plans. This care shown by the provisions of the decree contributes to its feasibility. It also improves the application of public law in the preparation of architectural and engineering plans, the execution of works, and the management and maintenance of completed developments, as it defines and standardizes the methodology, technology, or process required of public managers in these activities.

In addition to the engineering documents recognized by the laws and regulations in force (preliminary design, basic design, and executive design), BIM will now reach all other engineering documents that may be prepared by this methodology. This means that the provisions of the decree may be implemented in other stages or levels of detail for a work or design recognized by the best engineering practices and especially by the application of BIM, called by architects and engineers, among other specialists, a preliminary study, feasibility study, or legal design, among others. Considering the lack of legislative treatment in such cases, the decree provided that these other design levels, when contracted, should meet the minimum parameters established in the decree, the best practices for the execution of workflows with the use of BIM, and the provisions of the relevant technical standards.

In order to enable transition to a new model, when necessary, the decree allows agencies and entities covered by it to contract engineering services to adapt architecture and engineering plans to BIM (at any level of detail), previously prepared with the use of other processes or technologies.

The positive externalities of BIM for public works

The use of BIM allows one to virtually create an environment capable of simulating the construction in all its complexity: architecture, foundations and structure, ceilings and roofs, plumbing and electrical installations, among others. The interaction and coordination component helps to prevent and correct potential problems before the construction stage. In other words, the interaction activities of the agents involved allow any inconsistencies to be identified and corrected before the presentation of the necessary documents and, above all, before the implementation work is carried out.

Therefore, in the development of plans with the BIM methodology, the concentration of decisions takes place in the phase before the work stage. This process demands more action from complementary designers (of facilities, structures, interiors, etc.), assemblers, manufacturers, and suppliers in the initial stages of projects, which, in conjunction with the virtual simulation capacity through the BIM platform, allows greater cohesion and consistency after the initial stages. These, in turn, may require greater allocation of resources and investments with BIM than with current techniques. This characteristic facilitates, above all, qualitative changes in contracts and processes of economic and financial rebalancing, automating the relevant calculations and providing greater safety and protection against deviations and malfeasance in these processes.

Thus, the concentration of efforts in the initial phases allows for greater definition of the project, reducing uncertainties, interference, and rework, on the one hand, and increasing the accuracy of the development, on the other. In the BIM methodology, therefore, efforts are transferred to the initial stages, anticipating risks that could arise later in the execution stage of the works. Prior visualization of potential inconsistencies in the development of the work allows one to optimize the schedule and planning of the work, reducing the need for entering into addenda, in addition to efforts and costs (waste) in later phases.

The decree recognizes that the Government’s obsession with the lowest price as a criterion for selecting the best bid in public procurement must be overcome. A more complex cost-benefit analysis is proposed, which goes beyond the economic and financial disbursement at the time of procurement of the project to cover responsibility throughout the life cycle of the development contracted. In this new sense for cost savings, BIM contributes to enabling the Government to achieve a better cost-benefit ratio in procurement of engineering works and services.

In short, the aggregate efficiency with the use of BIM helps to confront this moment of crisis, when public works gain particular relevance: on the one hand, they may be executed in an emergency, which generates additional burdens and cautions for public managers and even for contractors, and on the other, they have the mandate to leverage the recovery of the economy, at a time when the State is exercising its purchasing power to generate jobs and disseminate new technologies and knowledge.

BIM also increases transparency, security, and compliance in the State's contractual relations with private parties, and can serve as a basis for rebalancing, rescheduling of investment, and renegotiation proceedings, which, if already natural in normal times in the engineering and construction markets, should increase with the effects of the covid-19 pandemic.