UK: Demystifying BIM (Building Information Modelling)

Last Updated: 7 February 2012
Article by Lisa Kingston

The Government's Autumn Statement re-affirmed the Cabinet Office's commitment to the use of Building Information Modelling (BIM), the purpose of which is to provide a common, co-ordinated source of structured information to support construction projects. Within five years, virtually every UK government project above a certain size will be carried out using BIM Level 2 and it is intended that the industry will move to fully integrated BIM (BIM Level 3) thereafter. Yet BIM remains an alien concept to many.

The purpose of this note is to remove some of the mystery of BIM and consider the possible legal implications of its widespread use.

What is BIM?

There is no universally accepted definition of BIM but many commentators seem to accept the definition advanced jointly by the RIBA, Construction Project Information Committee and BuildingSmart. That definition states:

"Building Information Modelling is digital representation of physical and functional characteristics of a facility creating a shared knowledge resource for information about it forming a reliable basis for decisions during its life cycle, from earliest conception to demolition".

The BIM Industry Working Group was invited by BIS and the Efficiency Reform Group of the Cabinet Office to assess the benefits of BIM and produced a report in March 2011. The Group identified four different 'Maturity Levels' ranging from Level 0 BIM (which is the traditional CAD approach) to Level 3 BIM to ensure a clear understanding of the way in which BIM could be used on projects. Level 2 and Level 3 BIM are most relevant for present purposes and are considered in further detail below.

BIM maturity levels

Level 2 BIM

Level 2 BIM constitutes a managed 3D environment with individual discipline BIM tools with relevant data attached. Integration is achieved by proprietary interfaces and 4D programme data. 5D cost elements may also be used.

According to Mark Bews, Chairman of the BIM Industry Working Group and Director of Business Information Systems at URS / Scott Wilson, only 15% of jobs currently use Level 2 BIM and much therefore remains to be done to increase the awareness and use of BIM across all sectors of the construction industry.

Level 3 BIM

At its highest level, Level 3 BIM is a completely open design process. Data is integrated with the use of web services which are managed by a single collaborative model server.

The project model is contributed to by the design team (architects, surveyors, consulting engineers and others) and the design sub-contractors. Each contributor adds their own additional discipline specific information to the model on an ongoing basis and tracks any changes made.

The model can be updated to take account of client change and other additional works and may determine how the timing and cost of the programme could be impacted by any client change or additional works. The model may also be used to plan the procurement of materials, equipment and manpower ensuring these are at an appropriate level to avoid any overspend.

On completion of the project, the model can be used by the employer to assist the maintenance and occupation of the building.

This transparent approach allows BIM to operate at its full potential but it also raises some legal issues which are discussed further below.

Possible legal issues arising from Level 3 BIM use

The full legal implications of BIM are still being explored and will not become fully evident until such time as the use of Level 3 BIM becomes widespread. It is however unlikely that BIM will radically shift legal risks and responsibilities: indeed, the overall risk to the various parties should in fact decrease if the key issues are identified at an early stage and the parties adopt a collaborative approach.

Contracts must recognise BIM

BIM can be used in many different ways. It is therefore crucial that the parties define the full extent to which BIM will be used on their project and ensure the contract reflects the part that BIM will play.

Currently, the only existing contracts that could be used in their current form on a BIM Level 3 project are JCT-Constructing Excellence, NEC3 and PPC2000, all of which employ a collaborate approach and share risk. The use of other standard forms would require significant amendment or 'Z' clauses.

BIM managers

For some, using BIM may be an inherently new way of working, in which case identifying and engaging a BIM Manager could be important to ensure proper management of the model.

If a BIM Manager is appointed (any BIM Manager will ideally be the lead designer) then the duties of any such BIM Manager should be defined by any contract or professional appointment to minimise any duplication of design responsibility. Duties may include controlling access to the model and ensuring that all data is entered properly and is well structured.

Precedence of any BIM project model

If the BIM model is to take contractual precedence, the definition of "contract documents" should be amended to include the project model. This would make the model itself and the proper management of the model key. The model should only take contractual precedence if it can be operated properly and on a full-time (as opposed to part-time) basis.

If the model is not to take precedence, the level of importance of the model and its use against other contract documents (for example, specifications or other design documents) would have to be considered and reflected by the contract.

If the model is not included as a contract document at all, it would be of relatively limited use. It would have no contractual status and may be limited to a mere design tool.

Intellectual property rights and ownership of the model

The traditional approach is for the designer to own the copyright in his designs and specifications and for the client to be provided with a licence to use the plans, designs and specifications for the project. Alternatively, joint ownership can be agreed.

With Level 3 BIM, the issues are slightly more complicated because of the existence of the model. The preferred approach would probably be for the employer to take ownership of the model, and for the lead designer to retain the copyright in the model (as has been the case traditionally). This would enable the employer to generate and manage data throughout the lifecycle of the building on issues such as planning, operations and maintenance and energy efficiency. This is a defining feature and key advantage of BIM Level 3.

The sharing approach encouraged by BIM requires the contract to determine the copyright of data contributed to the model as well as the data within the model itself. Each party should therefore confirm it owns the copyright for the data it contributes to the model in default of which another party could unwittingly violate copyright by copying or using data in respect of which it has no legal entitlement.

Confidentiality

Another issue that arises out of intellectual property and data protection issues is confidentiality of the data supplied. Whilst this is by no means a feature unique to Level 3 BIM (the same issues arise in 2D design) it is worth re-iterating in the context of Level 3 BIM because BIM users need to be aware that any information added to the model might be widely accessible. Trade secrets and confidential details necessary for the manufacture of certain components may need to be incorporated into the model and some parties will understandably feel uneasy about such information becoming more easily accessible.

One option might be to insert confidentiality provisions into the project documents and appointments but this may be difficult to achieve in practice. A solution in part may be to exclude sensitive information from the model, or alternatively, only provide sensitive information to the requesting party.

Conclusion

Whilst legal issues do arise from the use of BIM Level 3 (and also BIM Level 2) they are by no means insurmountable and should not hinder the future use of BIM.

Provided BIM is used properly and accounted for in the contract documents, it should minimise design conflicts at the design phase prior to the build commencing. When design defects are discovered on site, delay can quickly become an issue. The use of Level 3 and Level 2 BIM ought therefore to reduce the incidence of professional negligence claims and delay and disruption claims should in turn also decrease.

This article is based on Insight, Fenwick Elliott's latest monthly newsletter, which provides practical information on topical issues affecting the building, engineering and energy sectors. To find out more, please go to www.fenwickelliott.com/research-insight/newsletters/insight.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Lisa Kingston
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.