United Kingdom: Legal Issues Surrounding Building Information Modelling (BIM)

Last Updated: 6 December 2012
Article by Jeremy Glover

Currently in the UK, there is a lot of discussion about Building Information Modelling (or BIM). BIM is a way of approaching the design and documentation of a project utilising 3D computer technology which is shared amongst the design and construction teams, incorporating cost, programme, design, physical performance and other information regarding the entire lifecycle of the building in the construction information/building model. In the UK this discussion has largely been generated by the publication of the government's construction strategy which requires that all government projects utilise BIM in the form of a fully collaborative 3D computer model (Level 2) by 2016, with all project and asset information, documentation and data being electronic. Of course internationally, the use of BIM can already be found on projects worldwide. For example, in Norway, the Statsbygg (the Norwegian government's key advisor in construction and property affairs) already use BIM in all public projects.

It is important to remember that BIM is not simply the use of 3D technology – it is a way of design and construction. And as the use of BIM spreads throughout the construction industry, thoughts inevitably turn to the question of the type of legal and contractual implications that may arise. The Singapore BIM Guide1 notes that:

"A basic premise of Building Information Modelling (BIM) is collaboration by different project members at different stages of the life cycle of a facility to insert, extract, update or modify information in the BIM process to support and reflect the roles of each project member."

Will BIM alter responsibilities for design?

This can lead to concerns about whether or not the use of BIM might alter the traditional allocation of responsibilities as between the client, contractors, designers and suppliers. In the UK, where the government is talking about the implementation of BIM Level 2, the answer to this question is that BIM should not alter those traditional responsibilities to any great degree. I say this because BIM Level 2 is:

"a series of federated models prepared by different design teams (the number of models and purpose to be determined by the Employer), put together in the context of a common framework for the purpose of being used for a single project with licences granted to other project teams members to use the information contained in the federated models".2

If you think of each model as a drawing or design in the more traditional sense, then provided your contract clearly defines your role and responsibility in the usual way, you can see why there should not be any significant change. Indeed you should remember that your usual responsibilities will remain. Remember the importance of understanding the design brief and the ongoing obligation to review the design. The new technology and new way of producing design do not change the fundamental legal principles.3

What will happen to my contract?

There is also the question of how (if at all) the standard form appointments and building contracts should be altered to account for the use of BIM. The view of the NEC is that there is no need to do anything more than insert a BIM Protocol into the Works Information or Scope. This is the approach taken by the standard UK contract body, the JCT whose Public Sector Supplement suggests incorporating a BIM Protocol as a contract document'. So far, this seems quite simple. But what is not necessarily so straightforward is knowing quite what the BIM Protocol actually is.

What is the BIM Protocol all about?

According to the AEC (UK) BIM protocol, the purpose of the protocol is to:

  • To maximise production efficiency through adopting a coordinated and consistent approach to working in BIM;
  • To define the standards, settings and best practices that ensure delivery of high quality data and uniform drawing output across an entire project; and
  • To ensure that digital BIM files are structured correctly to enable efficient data sharing whilst working in a collaborative environment across multidisciplinary teams both internally and in external BIM environments.

To achieve this, the key features of a typical BIM Protocol should include consideration of the following:

  • Definitions;
  • The place of the BIM protocol in the priority of the contract documents;
  • The obligations of the Employer;
  • Who should appoint the BIM Information Manager and when?
  • The obligations of project team members;
  • Who is to produce the models needed and by when?
  • To what extent will there be a collaborative working practice; " How will the electronic data be exchanged?
  • The use of models. Who can amend data once it is incorporated? You can look but not touch?
  • Copyright. The need to grant licences related to permitted purposes;
  • What are the limitations (if any) on liability associated with models?

Who is the BIM Manager?

Here, it is critical that you understand the terms being used. BIM is (relatively) new. People use different words and terms to define the same role. Here more than ever, you should not assume what a word means. To take one example: the list of key features of the BIM protocol set out above, refers to the BIM Information Manager. Other people might refer to the BIM Model Manager or maybe the Design Co-ordination Manager or even the VDC (Virtual Design to Construction) Manager.

Whatever name the BIM Information Manager goes by, it is an important position. The basic role of the BIM Manager is to coordinate the use of BIM on a project. The BIM Information Manager is responsible for the administration and management of processes associated with Building Information Modelling on a particular project. More specifically, the draft PAS 1192-2:20124 requires the BIM Information Manager to:

"provide a focal point for all information modelling issues in the project; ensure that the constituent parts of the Project Information Model are compliant with the MIDP [Master Information Delivery Plan]; [and] ensuring that the constituent parts of the Project Information Model have been approved and authorized as "suitable for purpose" before sharing and before issuing for approval".

This will include having responsibilities for user access to the project BIM Model and for coordinating the submission of the individual designs and integrating them into the project model. The BIM Information Manager should also be in charge of data security and for maintaining records (who submitted what and when, and was it according to the agreed programme) and a data archive.

At Level 2 BIM, it is during the coordination process that the models are linked (or referenced) together into one federated model. A well-drafted protocol will ensure that the liabilities of each designer remain the same, before and after the incorporation of their design (or model) into the federated model.

This does lead to one further question. If each party is responsible for its own model, to what extent is the BIM Information Manager liable when clashes are not detected or the design is not coordinated? The typical approach, at least at common law, is that set out by the draft PAS 1192-2:2012 which suggests that the Lead Designer shall be responsible for the coordinated delivery of all design information.

In other words, nothing has changed. The role of the BIM Information Manager is therefore not meant to be equivalent of Lead Designer. The Information Manager is responsible for the management of information, information processes and compliance with agreed procedures, not the coordination of design. However, this does need to be spelt out, perhaps in the BIM Protocol; otherwise a potential conflict arises with regards to design and design coordination roles.

The BIM Implementation Plan

Finally, the BIM Information Manager may also be responsible for establishing and implementing the BIM Execution (or Implementation) Plan. One way of looking at this, is as a BIM Programme or Schedule of Works. The Singapore BIM guide defines the "BIM Execution Plan" as a document which sets out:

"how BIM will be implemented on a particular project as a result of the collective decision by the members of that project, with the approval of the Employer".

In Singapore, the BIM Execution Plan is not seen as a contractual document, but the work product of a contract. The BIM Execution Plan should therefore provide a baseline to measure progress throughout the project. It should set out the roles and responsibilities of the project for design delivery (or data drop), model creation, maintenance and collaboration at the various stages of the project. As a consequence it might assist in identifying any additional services or resources that might be needed in the contract.

The BIM Execution Plan should also set out definitions of terms, and details of any file naming conventions, abbreviations and dimensions. Step-by-step checklists are also important; who needs to do what, by when? It may include templates to ensure that it is easier to understand and compare what everyone is doing. It may also set out the process of information approval. The Plan should therefore be considered as being in addition to, but aligned with, the construction programme and the design programme.

Conclusions

At least at Level 2, BIM should not alter the traditional design roles and responsibilities. As always, it is important that these are clearly defined and spelt out. It is also true that at Level 2, there should not be any great need to amend or rewrite the standard forms of contract and professional appointments. However, this is provided that those working with BIM all sign up to a BIM Protocol and agree to produce a BIM Implementation Plan promptly.

The BIM Protocol and the BIM Implementation Plan are the key documents which set out the lines of responsibility for the production and coordination of the design throughout the BIM process. Make sure that your project has these documents and ensure that you understand the terms and definitions used in those documents and the extent to which you are responsible for any particular element of design.

Footnotes

1. www.aces.org.sg/pdf/058-2012_BCA_Singapore%20BIM%20Guide_Version%201.pdf . Version 1.0, May 2012.

2. NBS Roundtable 12 July 2012

3. In time, as the technology bounds on and the collaborative nature of BIM increases, this may (most would say "will") change, but not at Level 2. 4. In the UK, a Publicly Available Specification (PAS) is a sponsored fast-track standard driven by the needs of the client organisations and developed according to guidelines set out by the British Standards Institute.

This article is taken from the latest edition of International Quarterly. To see past issues please go to http://www.fenwickelliott.com/research-insight/newsletters/international-quarterly.

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
Jeremy Glover
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
Accounting and Audit
Anti-trust/Competition Law
Consumer Protection
Corporate/Commercial Law
Criminal Law
Employment and HR
Energy and Natural Resources
Environment
Family and Matrimonial
Finance and Banking
Food, Drugs, Healthcare, Life Sciences
Government, Public Sector
Immigration
Insolvency/Bankruptcy, Re-structuring
Insurance
Intellectual Property
International Law
Law Practice Management
Litigation, Mediation & Arbitration
Media, Telecoms, IT, Entertainment
Privacy
Real Estate and Construction
Strategy
Tax
Transport
Wealth Management
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates

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.