REUTERS | John Kolesidis

BIM: the legal issues: what’s new?

My posts on building information modelling (BIM) over the last six months have touched on ownership and IP, preparedness and managing the professional team. In writing them, I’ve drawn attention to some of the key legal issues that will need to be considered as BIM develops.

There is a consensus emerging that BIM level 3 may require radical thought. This post highlights some recent developments.

Background: BIM levels

Just as a quick recap:

  • BIM level 2 can be summarised as providing a 3D environment, held in separate disciplines’ BIM tools, often with attached data, managed on the basis of proprietary interfaces or bespoke middleware. That is, there is not one single database for all information and commercial data is held separately (although it may be accessed using appropriate software).
  • BIM level 3 uses  one standardised model, which everyone who needs to can access.  A fuller (more technical) description is that BIM level 3 uses a fully-open process with data integration, which is enabled by web services. The web services must be compliant with emerging industry foundation-class standards and are managed by a collaborative model server.

The game-changer: BIM level 3

I think it’s now generally accepted that level 3 BIM will require significant changes to contract structures and terms. These will reflect the multi-party contributions to a fully-integrated BIM, govern the changed responsibilities of the parties and recognise the collaborative structure and approach needed for level 3 BIM to operate smoothly in practice.

However, the Government’s view is that level 2 BIM can be achieved from a contractual perspective using standard form contracts with simple amendments to refer to a BIM protocol. The protocol will encapsulate the rules to be applied by all parties contributing to the BIM.

BIM level 2 in practice: government’s BIM Implementation Task Group

There is a continuing debate in legal circles about the appropriateness of the existing standard form contracts to a BIM environment, even at level 2. For example, the collaborative nature of the contract structure required even for level 2 is not reflected in most standard forms.

However, the Commercial Workstream of the government’s BIM Implementation Task Group has recently embarked on the process of developing contractual documents to support level 2 BIM.

The CIC has been asked to revise its Scopes of Services to reflect BIM and, in particular, the role of Information Manager through all stages of the project associated with level 2 BIM.

The Commercial Workstream is also commissioning a BIM protocol that will enable parties to agree and document the main organisational, commercial and legal requirements of their BIM. They hope to publish the protocol later this year. They envisage that the agreed document for a project can then be used with the many different standard forms of contract.

The BIM protocol

The Commercial Workstream intend that the BIM protocol will, effectively, become a contract document in connection with professional consultants’ appointments and main contracts. It will incorporate provisions for recording project-specific BIM arrangements, including:

  • Definitions of roles and responsibilities of the different parties to the BIM.
  • Details of the level of BIM and model standards to be applied.
  • Format and information exchange standards.
  • Specimen wording for licences.
  • Information exchange agreements.
  • Authorised users of the BIM.
  • Change management processes to be adopted.
  • BIM deliverables.

Whether the BIM protocol will deal with other potentially more controversial issues remains to be seen. Such issues include:

  • Responsibility for the model.
  • BIM risk allocation.
  • BIM IP allocation.

Whether deals with those issues or not, the protocol should be a significant contribution to the BIM implementation strategy.

The private sector

Of course, many major professional consultants and contractors are already looking at these issues. It could be that the private sector will take the lead in developing new, BIM-friendly, collaborative contracts and protocols that promote a new method of working and a new set of deliverables. If they did, those contracts could be just as attractive to private sector clients as to the public sector.

One thought on “BIM: the legal issues: what’s new?

  1. I’ve worked with CAD and BIM technology for over 21 years. It remains that BIM incurs a higher level of data re-use and inter-reliance upon dynamically updated integrated design information than conventional discrete, individually updated and issued design documents. The latter may be slower, but allows for the implementation of repeated QA checks.

    The unanswered questions include:

    What precedence is given to the accuracy of any BIM Model over another, or conventional 2D contractual drawings? E.g. In the event of any discrepancy between different models, or a model and the drawings, should measurements taken from the model take priority and be relied upon by all authorised users of the BIM? The American ConsensusDOCS 301 – Building Information Modeling Addendum contains clauses that clarify model/drawing precedence.

    What liability would be implied by a designer issuing a detailed 3D model assembly without the provision of an equally detailed assembly sequence? As a recent US case revealed, the sub-contractor might rely upon a detailed model, only to find that its assembly involves following a precise sequence for successful installation. The contractor sued the owner, who, in turn, sued the designer.

    When a project participant is assigned the role of Information Manager, who is responsible for the conversion or extraction of BIM data into a form that is readily and usefully exchangeable with other design specialists? Typically, there is an Information Delivery Manual, but that may simply identify the data exchange requirement as a standard (as you indicate), rather than fixing responsibility for the conversion process with a specific party, or parties.

    Does a lack of privity of contract between specific parties and a schedule of authorised uses of the BIM negate the liability implied by agreement to share and rely on a collaborative model?

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