The increasing use of BIM in the UK is one that is driven by Government policy. The Government envisage a "fully collaborative 3D BIM (with all project and asset information, documentation and data being electronic) as a minimum by 2016"1. Whilst this is currently only required in public contracts, private contractors have been keen to implement BIM into their work.
What is BIM?
BIM is a digital representation of a Project which creates a shared knowledge information resource for all Project Team Members to access. It builds upon the traditional form of 3D-CAD based designs by incorporating various sources of information from time estimates and dimensions to the cost of the individual parts of a Project. This will then be shared amongst all of the Project Team Members who will produce their own Models to be incorporated into a full model (Federated Model) that can be accessed by all Project Team Members.
The benefits of BIM are improved design, easy access to project information, ability to improve co-ordination of construction documents and potentially reduced costs.
What are the legal implications and issues?
Like any new initiative there are always potential risks and issues that need to be addressed. From a legal perspective one consideration is how the implementation of BIM will affect the contractual process and the risk placed on various parties. Questions that will need to be addressed are who will take the risk for any incorrect information in the BIM Models, who will insure for any liability arising from the BIM Model and who will own the intellectual property rights.
The Construction Industry Council has produced a Building Information Model (BIM) Protocol (CIC/BIM Pro, First Edition 2013) ("Protocol") the intention of which is to be an appendix to all Contracts and Appointments in relation to a Project. The aim of the Protocol is to achieve a level of certainty with regards to BIM whilst also providing for flexibility.
The Employer will be responsible at the initial stage for drafting and incorporating the BIM Protocol into all contracts and Consultant Appointments. The Employer will then, make it a term of the Building Contract for the Contractor to be responsible for ensuring the Models are provided going forward.
The ability of sophisticated Consultants and Contractors to implement BIM is one that they are likely to embrace in order to keep in front of their competitors. One question to be answered is whether smaller Sub-Contractors/Consultants will have the resources to contribute to BIM and what impact this may have on the Federated Model and benefits BIM seeks to achieve.
It's all in the preparation...
Benjamin Franklin once said that "by failing to prepare you are preparing to fail". This quote rings true with regards to BIM. The Protocol includes a Model Production and Delivery Table (MPDT) which allocates responsibility for preparation of the Models and identifies the different level of detail that the Models need to provide at various stages of the Project. The Protocol places a lot of weight on this document as it is effectively the project plan which will set out what the Project Team Members obligations are throughout the Project. The risk present here is that potential delays could occur if any information is omitted potentially opening up the Contractor to liquidated damages.
Intellectual Property Rights
One major concern for the Employer, Contractor and all Project Team Members is who owns the Intellectual Property Rights (IPR).
Clause 6 of the Protocol makes it clear that all property rights remain with the Project Team Member. If the Employer wants to own these rights then the Appointment/Building Contract will either have to be amended or a separate agreement entered into.
Each Project Team Member will grant the Employer a non-exclusive licence to the material produced by the Project Team Member for the Permitted Purpose as defined in the Protocol. The Employer will then grant to all other Project Team Members a non-exclusive sub licence to transmit, copy and use such material. The Employer owns the full Federated Model.
Potential conflicts could arise in relation to the definition of Permitted Purpose if the Materials are used in such a way that another party disagrees with.
Due to the potential administrative burden of BIM the Protocol requires the Employer to appoint a party to undertake the Information Management Role.
Key questions will arise from this regarding what this role will cover. Will it simply be to keep the data safe and secure as well as arranging access to the data or will it go as far as coordinating and chasing each of the Project Team Members to ensure they have updated the BIM Model on time.
Further consideration is needed into how the breadth of the services incorporated into the Appointment effects liability. Where will the risk lay for Models which are forgotten about and not incorporated into the Federated Model? Will the Information Manager need Professional Indemnity Insurance to cover such a failure to acquire a particular Model or will the Employer seek recourse from the Consultant/Sub-Contractor who has not provided the Model?
Whilst BIM is considered by many as being in its early conception stage the case for BIM and the amount of construction projects utilizing it is growing. Due to the success seen in the US and UK Government initiatives, the UK construction industry is now starting to fully embrace the technological advances.
However, whilst BIM has many benefits there are issues arising from it which from a legal perspective will need serious consideration before BIM can be fully implemented into a Project.
1 Government Construction Strategy, Cabinet Office, May 2011, Page 14, Paragraph 2.32.
For more information please contact Penny Tate, Partner at DWF, Construction, Infrastructure & Projects.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.