UK: Building Information Modelling

Last Updated: 21 January 2013
Article by David Savage

Legal issues

What is BIM?

There are many definitions of Building Information Modelling (BIM).

The RIBA, Construction Project Information Committee and BuildingSmart jointly proposed a definition of BIM for the UK construction industry, as a starting point for discussion and refinement:

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

The Department for Business Innovation and Skills refers to:

"a managed approach to the collection and exploitation of information across a project. At its heart is a computer-generated model containing all graphical and tabular information about the design, construction and operation of the asset."

Is it just for mega projects? Angela Brady, RIBA President, has said:

"Some commentators have suggested that there are financial and skills barriers to the adoption of BIM by smaller practices and that the benefits to small practices may be more limited. However, the RIBA believes that, as happened with the introduction of CAD, a tipping point will soon be reached when BIM will gain widespread acceptance as a transformative technology and working philosophy at all scales of practice. The principles of BIM can be applied to both complex projects with large multi-disciplinary design teams and large numbers of specialist sub-contractors and also to smaller, bespoke projects undertaken in a more traditional manner."

The BIM Industry Working Group (the "Working Group") was invited by BIS and the Efficiency Reform Group from the Cabinet Office to look at the construction and postoccupancy benefits of BIM for use in the UK building and infrastructure markets. To ensure clear articulation of the levels of competence expected from suppliers, the Working Group referred to four different maturity levels of BIM:

  • Level 0 – unmanaged CAD with 2D formats (e.g. paper or PDFs) used to share information
  • Level 1 – managed CAD in 2 or 3D format, with a collaboration tool providing a common data environment. Commercial data managed by standalone finance and cost management packages with no integration
  • Level 2 – managed 3D environment held in separate discipline BIM tools with attached data. Integration on the basis of proprietary interfaces. The approach may utilise 4D programme data and 5D cost elements
  • Level 3 – fully open process and data integration enabled by web services, managed by a collaborative model server.

The Government Construction Strategy was subsequently published by the Cabinet office on 31 May 2011. This report announced the Government's intention to require collaborative 3D BIM (i.e. Level 2 BIM) on all projects above a certain size by 2016. In reality, the industry is still a long way from achieving Level 3 BIM maturity, not least because of the technological challenges in creating a single manageable BIM model. It is more likely that each party will continue to maintain its own model with a common interface facilitating collaboration and the sharing of information between models. It is also likely to be some time before the lower rungs of the supply chain is ready to receive anything other than paper drawings.

The shift from level 0 to level 3 BIM has been compared to the shift from drafting on tracing paper to CAD. Others say that the shift is more fundamental than that, because the later shift did not change the output (2D drawings) but simply the delivery mechanism (ie. Tracing paper to PDFs etc). In contrast, the shift from 0 to level 3 BIM requires:

  • Collaborative and integrated working methods and teamwork with closer ties between all designers on a project, including designing trade contractors;
  • Knowledge of databases and how these can be integrated with the building model to produce a data-rich model, incorporating specification, cost, time and FM information;
  • New procurement routes and forms of contracts aligned to the new working methods;
  • Interoperability of software to enable concurrent design activities, for example, allowing environmental modelling to occur concurrent with orientation and façade studies;
  • Standardisation of the frequently used definitions and a rationalisation of the new terms being developed in relation to BIM; and
  • Use of BIM data to analyse time (4D), cost (5D) and FM (6D) aspects of a project.

Benefits of BIM

So why is the Government so keen to push the use of BIM?

It is claimed that, depending on the level achieved, BIM has the potential to provide many benefits. These include:

  • Early clash detection and fewer errors caused by inaccurate and uncoordinated information
  • Significant internal advantages for consultants, such as embedded quality control and more efficient working practices
  • Improved ability to visualise the project and assess the impact of changes
  • Accurate and rapid generation of cost and quantity data
  • Assisting in the on-going lifecycle management of a building

Legal issues

However, while BIM undoubtedly has the potential to deliver significant benefits to clients, contractors and consultants, the NBS National BIM Report 2012 found a surprising 21% of respondents reported that they were unaware of BIM. Only 31% were currently using BIM.

Of those respondents who were aware of BIM but had not yet adopted it, 63% agreed that it was too expensive to consider at the moment. Clearly the downturn may have some effect on the rate of adoption, although some respondents commented that there was more staff time available for training and implantation.

Although not explicitly identified by the NBS report, concerns have also been expressed regarding the legal implications of adopting BIM. This paper will now consider some of these legal implications.

Integration with contracts and appointment documentation

Level 2 BIM is unlikely to require significant amendments to the core terms of most contracts. However, a well drafted BIM protocol will be essential and care should be taken to ensure the schedule of services for each designer properly reflects their duties and responsibilities in relation to BIM.

The Working Group concluded that:

"little change is required in the fundamental building blocks of copyright law, contracts or insurance to facilitate working at Level 2 of BIM maturity. Some essential investment is required in simple, standard protocols and service schedules to define BIM-specific roles, ways of working and desired outputs.

Looking forward to the achievement of Level 3 integrated working, there are limited actions related to contracts, appointments and insurance that could be taken to facilitate early adoption of integrated working."

The Working Group suggested that:

  • The contractual requirements for BIM should be embodied in a BIM protocol for each project. This protocol should then be incorporated by reference into the relevant standard form contracts or professional appointment documents on the basis of a simple additional clause.

A draft BIM protocol is included in the BIM Working Party Strategy Paper. This draft protocol is expressly drafted for inclusion in the Works Information section of an NEC3-style contract.

  • Dispute resolution provisions can remain unchanged (although the practicalities of identifying contributions by design team members and consequent liability may become progressively more complex – see below)
  • There will be an even greater need to clearly spell out the extent of each designer's responsibilities. Additional duties will need to be defined in the schedules of services for professional appointments describing the additional services and outputs that might result from a BIM based project. RIBA has produced a BIM Overlay to the RIBA Outline Plan of Work.

The JCT has issued the Public Sector Supplement, which purports to make provision for BIM by inserting a reference to 'any agreed Business Information Modelling protocol' in the definition of 'Contract Documents'. The existing JCT drafting will then require the contractor to comply with the Contract Documents. An equivalent duty should be inserted into the professional team's appointments.

The JCT considers that otherwise the "JCT's existing provisions appear adequate; the primary requirement is simply integration of BIM protocols... and their harmonisation with design submission procedures, information release schedules and communication protocols".

While this may be adequate for Level 2 BIM, it is debatable whether the relatively limited extent to which the JCT contracts (other than the little used Constructing Excellence contract) cater for partnering and collaboratively working is sufficient to manage Level 3 BIM. Alternative standard contract forms (e.g. NEC3) may be more suited to the collaborative approach implicitly required by Level 3 BIM.

NEC3 has not published any BIM amendments on the basis that it is considered sufficient to incorporate the relevant BIM protocol into the Works Information.

The complex projects contract recently issued by the Chartered Institute of Building (CIOB) is the first standard form building contract in the UK to include detailed provisions for a project adopting a BIM. While its focus on BIM is commendable, it remains to be seen whether the industry is ready to embrace another detailed standard form contract.

Insurance and liability

It is hoped that, overall, increased use of BIM should actually help to de-risk projects for all concerned. For example, BIM should facilitate the identification of design clashes at an early stage, thereby dramatically reducing the impact of such conflicts.

There are always some initial risks associated with the introduction of new technology, while staff gain familiarity with the software and new working practices. Adequate training is essential to minimise these risks.

As the increasingly mature use of BIM facilitates collaboration and joint authorship of designs, it may become progressively more complex from a practical perspective to clearly establish liability where errors do occur, although the technology should at least provide a clear audit trail of design changes.

It may be impossible to manage the contractual implications of the truly integrated single model envisaged by Level 3 BIM without a fundamental shift away from the traditional adversarial approach to construction. Before the downturn there was already a move towards the principles of partnering and collaborative working.

Adoption of integrated project insurance at higher levels of BIM integration may be prudent (or indeed essential) given the potential for increased difficulty in establishing the parties' respective liabilities. The Working Group considered that the current insurance provisions in the construction industry "support a blame/liability culture, which in turn results in a 'silo' mentality". The full benefits of collaborative working are more likely to be realised if the contractual and insurance arrangements support a team environment. In the meantime, professional indemnity insurers will be concerned to see that their insured parties do not inadvertently extent their liability; for example, by taking responsibility for integrating the design of other collaborators or assuming overall responsibility for accuracy of the model.

In the US, where the use of BIM is slightly more widespread 1, it was reported that the first BIM lawsuit arose in relation to the construction of a life-sciences building at a major university. Apparently the architect and MEP engineer used BIM to fit the building's MEP systems into the ceiling plenum. However, the design team failed to inform the contractor that the BIM design required a very specific installation sequence, leading to predictably disastrous results during construction. The dispute was subsequently settled by the parties' insurers.

However it is debatable, to say the least, whether BIM can fairly be blamed for this litigation. It seems that the real cause was a simple failure to communicate, which could equally occur on a CAD or paper designed project.

Intellectual Property

The majority of documents (whether electronic or paper) produced in the construction of a building will be protected as artistic works under the Copyright, Designs and Patents Act 1988. Copyright generally vests in the author of the work rather than the party which commissioned the work. Where a work is made by an employee in the course of his employment, the employer will be the first owner of copyright in the work, subject to any agreement to the contrary.

Copyright gives the owner the exclusive right to authorise or prohibit the exploitation of copyright work by others. Therefore, a person with a legitimate requirement to use the copyright work (e.g. the developer or a collaborating consultant or contractor) will either need a licence or an assignment of the copyright ownership.

The Working Group suggests that a BIM model might also fall within the definition of database for the purposes of database right. Database right exists independently of any copyright in a database and protects the compilation of information comprising the database.

Database right is infringed if a person extracts or re-utilises all or a substantial part of the contents of the database without the owner's permission.

Standard building contracts and appointments usually contain provisions dealing with the use of copyright materials. However, in some cases the wording may require some redrafting to reflect the wider ranges of uses for copyright material held in a BIM environment and to cover other intellectual property rights such as database rights. The parties will need to consider the increased likelihood of joint authorship, which is likely to rise where parties collaborate to produce a single model.

Designers should consider whether they require any restrictions on the post-completion use of copyright material. Designers may also wish to consider holding commercially sensitive data separately from the BIM model, so that it cannot be freely accessed by other project participants.

Conclusion

We are currently in a period of uncertainty. The government seems currently intent on driving the use of BIM in the public sector. Anecdotally it appears that many private developers remain to be convinced of the benefits, particularly given the requirement to fund a greater initial investment in design fees, although some major developers and contractors are more progressive in this regard. For example, John Lewis's head of construction recently stated that an understanding of technological advances such as BIM is a must on his supply chain tick list2 . It is also encouraging to see an increasing number of consultants adopting BIM of their own volition, in order to remain competitive and to realise the internal efficiency benefits.

In contractual terms, the standard forms of contract tend to lag behind developments in the industry and the emergence of BIM is no exception. As always, the position taken by insurance industry is likely to be a key driver of any change in contractual arrangements.

For the time being, well advised parties adopting BIM should do their best to anticipate the likely issues and ensure that their contracts make proper provision for the risks. After all, it can only be a matter of time before the first BIM dispute reaches the courts!

Footnotes

1 Source: McGraw-Hill Construction's SmartMarket Report (The Business Value of BIM in Europe: Getting Building Information Modeling to the Bottom Line in the United Kingdom, France and Germany) which reports that 36% of the Western European industry participants reported having adopted BIM, compared to the 49% adoption rate in North America in 2009

2 Building Magazine, 1 June 2012

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.

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