As we prepare to adopt the BIM working process in most public sector contracts by 2016 with hopefully similar up take by private sector clients, it is worth having a look at the legal issues that may arise when working with BIM. In doing this, the article intends to achieve two purposes: the first is to outline the legal issues that may occur in adopting the BIM process and how they may be managed, and the second is to expand the discourse on the appropriate approach for adopting BIM in the UK in light of these legal issues.
What is BIM?
NBS, the publishers of the National Building Specification, have defined BIM as:
'A rich information model, consisting of potentially multiple data sources, elements of which can be shared across all stakeholders and be maintained across the life of a building from inception to recycling'
In technical terms, BIM will be a transition from the traditional computer aided two-dimensional drawings to modelling representations of actual building parts and pieces used to build a structure, hence NBS investment in the NBS National BIM Library; the use of three dimensional modelling will allow for the creation of a virtual model of an entire project. However, BIM provides more than just measurements; it has been argued that the most important aspect of BIM is in fact its non-graphical information. BIM data would include information on specification properties, personnel, programming, quantities, cost, spaces and of course geometry.
The definition envisages a well-managed pool of information that contains contributions from the various parties involved in the construction process. To be well-managed and qualitative, the information contained in such a pool would relate together and build on each other to provide definitive data, thus if one piece of information is changed, it would have an impact on other information in the model. BIM is expected to break down the barriers created by segmentation of a project (i.e. designers working only on the specific design of a section of a project assigned them) and replace it with a collaborative working process, where all designers, engineers, contractors, sub-contractors and specialist manufacturers working on a project feed into and work on one information model or 'federated' models (various models linked together and drawing knowledge from each other). The Building Information Modelling Working Strategy report prepared for the UK government and published in March 2011 (March 2011 report) envisages that projects would be built twice: once in the model and then on site, with parties ensuring that the BIM model is an accurate and current representation of the project at every stage. For the UK government as a client, it is hoped that the adoption of BIM would result in significant improvements in cost, value, and carbon performance.
Legal issues
Setting out the legal issues in the adoption of BIM will ensure that the industry can collaborate without the worry of adverse legal consequences.
The confusion about the precise legal effect of adopting BIM stems from the manner it may be used in practice. For instance, BIM could be used internally for a project, where members of the same firm/consortium work together; this would not require changes to contract and simple common standards would suffice. However for BIM involving the collaboration of consultants, fabrication modellers, specialist manufacturers, contractors, sub contractors and facility mangers the construction contracts in use at present would require amendment to cover the legal issues that may arise. Another issue that seems to hold back the legal discourse is the apparent desire to focus attention solely on legal issues arising at level 2 of the UK BIM maturity index; at this stage of our knowledge of the BIM process it is possible to propose simple contractual amendments that are comprehensive and cover all stages of BIM development, whilst also allowing for amendments in the future when the law on this subject evolves.
The issues below are by no means exhaustive; there are, we suspect, novel issues that would arise during the operation of BIM, however the legal issues identified should enable the effective take off of a project that has been procured with BIM as one of the requirements:
- Contractual framework for incorporating BIM: The first issue is the incorporation of BIM into the contractual relationship of the parties. There is an argument that due to the substantial nature of the changes that the full adoption of BIM will bring, especially at level 3 of the UK BIM maturity index, it is better to draft new form of contracts. This in practice would require new form of contracts to cover the various relationships (i.e. Employer and Consultant, Contractor and Sub-contractor etc.) affected by the BIM working method.
The alternative argument proposes the incorporation of legal issues in a BIM protocol which would be a set of amendments to the main contract to make them suitable for BIM. The amendments could then be incorporated into the various agreements used for the project, ensuring that there is a similar set of BIM related rights and obligations flowing through the different contracts. This allows parties to retain the contracts they are accustomed to while adopting BIM. This seems the better approach, and has wide support (March 2011 report, the JCT Public Sector supplement and the US BIM protocol documents).
There is however an important division within this school. While some suggest that the BIM protocol should be included in one of the usual documents within the various UK construction contracts, i.e. Employers requirements in a JCT contract or the Works Information document in a NEC3 contract, others argue that the protocol should be a stand-alone amendment to the contract and should have priority over other contract documents on BIM issues.
This is an important point, because in practice the legal terms of the BIM protocol may conflict with the clauses of the principal contract. For instance a BIM protocol should require a more comprehensive intellectual property licensing procedure than that provided under current construction contracts used in the industry. Therefore as an example, if the BIM protocol were adopted as part of the Employers Requirement in the JCT Standard Building Contract (SBC), clause 1.3 would apply giving priority to the terms of the JCT contract over the BIM protocol (Re: Fenice Investments Inc. [2009] EWHC 3272 (TCC) where the court held that where there was fundamental discrepancy between the conditions of a JCT contract and Employers requirement, the JCT conditions would take priority). This would mean that in the event of conflict the current terms of the SBC could apply to situations created on account of the adoption of BIM. It is therefore important to provide for the priority of the BIM protocol over other contract documents on BIM issues to avoid such an outcome. Additionally, the extent of contractual and legal issues that should be covered in the BIM legal amendment, i.e. waivers, indemnities, liability for contribution etc., make it appropriate to recommend a stand-alone amendment.
The other legal issue is the number of models to be created, their relationship, and the relationship between the model(s) and 2D drawings. Where multiple models are specified by the BIM amendment, the parties should indicate which model takes priority in the event of conflict in the information contained in each of the models. The parties would need to agree on the content and format of each model and the required standards to be employed; these may be set out in a BIM execution plan that would form part of the contract documents. Standards may also be based on national or international standards, e.g. BS 1192:2007 Collaborative Production of Architectural, Engineering and Construction Information – Code of practice published by the British Standards Institution. It is also important to define the position of 2D drawings which will be required for obtaining building permits and the level of information/reliance to be placed on them, this will be important especially in terms of the level of detail in a project. - Model Management and other roles: Whether the parties contribute to a single model or federation of models the process would require management. At level 2 of the UK BIM maturity index (refer to March 2011 report), the Model Manager would be required among other things to implement the parties' agreement on model access, security, transmission, archiving, transmitting etc. At level 3 of the index such further duties like software interoperability and iBIM systems coordination will be added to the responsibilities of the model manager. An important aspect of delineating this role is to identify the issues the parties must agree which are to be coordinated by the model manager, i.e. model access, scope of services, software matrix etc. The legal issues here include: who appoints the model manager, how is the manager to be replaced, and who bears the costs, if any, arising from this role. The predominant thinking in this regard is that the Employer should be in charge of these issues, however in a 'Design and Build' contract, it is arguable that it should be the principal contractor. It is recommended that Parties should make a suitable choice based on their procurement method.
The powers and responsibilities of the model manager should be set out in the protocol. The roles of other parties and stakeholders in the BIM process should also be clearly outlined. Whether the same or different people occupy these roles, the relationship between model manager and an Architect /Project Manager and other team members should be defined especially since the Model Manager may be replaced during the course of the project. To avoid conflict, it is recommended that the role of the Model Manager be defined to give the holder exclusive responsibility and power to issue binding instructions on BIM related issues. - Intellectual Property Rights (in parts or elements of the model) and Data Management: The BIM model will consist of contributions from various parties. To avoid liability for infringement of third party intellectual property rights, the protocol should ensure that all contributors warrant that they hold the intellectual property rights over the contributions they make and provide an indemnity to all other parties who may use such contribution in the event of a third party intellectual property dispute.
Generally, UK intellectual property (IP) law recognises IP rights for each distinctive contribution; this should be preserved in the protocol. The protocol should ensure that each contributor provides a non-exclusive license and sub-license where required to cover all members the BIM project team to allow access and use of each contribution for the purposes of the project. These licences would be subject to the right to suspend or terminate. This would relate primarily to non-payment suspension or termination (see Housing Grants, Construction and Regeneration Act 1996
as amended). The ConsensusDOCS BIM document (a US BIM document) provides an interesting clause that ameliorates the confusion that may be caused where the licence to a contribution that has been feed into and used in various other aspects of the project is suspended. It recommends that such suspension would only affect licenses issued to the direct party (or parties) in default and does not to extend to licenses or sub- licenses to other members of the project team. There is no direct analogue of how this would work in practice. It however seems a useful provision to limit the chaotic effect the suspension of a license to a contribution may have if it extends to all project members who have used that contribution as an input in their own work.
The next issue is joint authorship. This would arise where two parties make a distinctive addition to a contribution, but it is not possible to separate where one ends and the other begins. The AIA BIM document (another US BIM document) provide that each model element (part of the model) is to be the responsibility of the Model Element Author (MEA - a party identified in the contract), who bears responsibility for the content and level of detail in that element of the model. This ring fences the authorship of the model element.
The ConsensusDOCS BIM document provides that no action from another project contributor would deprive an original contributor of their intellectual property right or create a joint authorship. Both routes seem unsuitable for the UK industry. The AIA approach was analysed by the March 2011 report as discouraging collaboration at an advanced level. The ConsensusDOCS approach is unlikely to receive the support of the UK courts, where a distinctive contribution has been made by two different contributors the court will be inclined towards holding joint authorship.
It seems the better approach would be to embrace the concept of joint authorship while preserving the limits on the liability of the original contributor. One way to achieve this is to define in the amendment what would constitute joint authorship, and recognise the right of the original author to accept or reject any addition and be saved from any liability for errors where an addition is made without its consent. Where consent is obtained both joint authors would hold rights to the contribution as well as bear joint and separate liability for its errors.
Confidentiality for the information shared during the BIM process could be guaranteed by a simple confidentiality and non-disclosure clause in the protocol. Competitive data containing trade secrets should be held and accessed in a manner that does not compromise the interests of its owners. Contributors should be asked to identify such data at the point of incorporation and restrictive rules of access, copying and transmission should apply. - Reliance on data: The main advantage of the BIM model or models is reliance on the information contained in it. Thus the protocol should make each party responsible for errors in its contributions.
Traditionally, project designers (architects and engineers) have managed the risks of reliance by disallowing reliance by parties other than their direct client and creating caveats supported by the law, limiting their liability to application of the relevant standard of professional care and due diligence. The BIM process would give direct access to the model to a variety of parties, who would take decisions and allocate resources based on the information contained in it. This potentially creates new classes of possible liability. To manage this risk, it is recommended that the BIM protocol includes a clause where all project participants' waive the rights to consequential damages and limit liability to direct losses connected with the project.
It is also critical to define who has responsibility to ensure the quality of contributions to the model or models, as well as the level of reliance to be placed on such contributions. This is particularly important where the model contains intelligent objects that may change on account of information derived from other contributors.
The AIA BIM document seems to have the most advanced proposition on this issue. The document divides the construction process into 'Model Elements' (adopting the UNIFORMAT classification of building processes). For example, under Part D of the UNIFORMAT II classification D20 is for plumbing; this is sub- divided into D2010 plumbing fixtures, D2020 domestic water distribution, D2030 sanitary waste etc. For each of these subdivisions, the parties are required to specify the level of development (LOD) required for inclusion into the model and specify the party (model element author) responsible to develop the element to that level. The document creates five standard levels of development and attaches to each a standard of reliance or authorised uses. The agreement limits liability only to the authorised uses. Thus at level 100, information may be relied upon for project phasing and overall duration and would contain details on overall building massing indicative of area, height volume etc. while at level 400 information may be relied upon among other things to show 'ordered and time-scale appearance of detailed specific elements and systems including construction means and methods' and would contain model elements developed 'as specific assemblies that are accurate in terms of size, shape, location, quantity and orientation with complete fabrication, assembly, and detailing information'.
The Model Manager, as part of its extensive responsibilities, should ensure that the specified level of detail required is met before addition of an element to the model; the Model Manager would also ensure that parties are working with the most up-to-date version of the BIM information set. - Liabilities: Some of the discourse above has outlined various limitation of liability provisions required to make BIM work. It is important that the protocol limits the liability of parties to a scope consistent with their fees and insurable rights without eroding the responsibility for inaccurate contributions.
One of the US BIM protocol documents (ConsensusDOCS) achieves this by expressly limiting the liability of parties to the contributions they have made and in that event to their contractual party. This ensures limitation of possible litigants while creating a chain of liability that mirrors the contractual chain.
The technology on which BIM is based may create peculiar liability issues. Software manufacturers are protected by blanket limitation of liability clauses that makes it inappropriate to transfer the risk of BIM errors caused by the software to the manufacturers. This risk should be dealt with contractually and should be borne by the party who takes responsibility for the BIM process. For software and technology related issues the parties should map out carefully the liability between consultants who chose these technologies and have expertise on them, and the Employer/ other owner of the BIM process. The aim should be for the consultants to bear the risks for errors in the choice of technology that could have been avoided had proper care and diligence been applied while the residual risk lies with the owner of the process.
It is important to ensure that the parties take out the appropriate insurance to cover their engagement in the BIM process. Where a project wide insurance is available this should be adopted. The UK government has proposed the greater use of integrated project insurance in BIM projects. Where such cover is not available, parties should consider obtaining traditional coverage to protect against the liability for errors or omissions in their contributions to the model.
- Ownership of BIM process, risk management during model transfer and model ownership (final product): The BIM process could throw up costs and time issues that are outside the principles of extension of time contained in the main agreement. It is important that the parties allocate in the BIM protocol which party would bear the risk for delays and/or costs arising from errors in the transmission and use of information during the BIM process. While such errors will hopefully be the exception rather than the norm, it is important that the BIM protocol provides for such eventualities. These costs and time issues lie within the parameters of ownership of the BIM process. The party 'owning' the process would be the one to determine the criteria for extension of time due to BIM errors and the process for extra payment where appropriate. The owner's liability for non-technology related errors is reduced by the liability of each participant for the error in contributions made by them. In the context of the UK industry, the Employer would in most cases be the appropriate party to bear the residual risks connected with the BIM process. Some procurement methods may throw up the main contractor as the owner of the process (i.e. design and build contracts) with the costs built into the tender. The parties would need to make a decision on the appropriate party based on the circumstances of their project.
One suggestion has been to create a 'BIM Contingency Fund', which draws contribution in defined proportion from all participants. The project participants could then apply to the fund to cover unforeseeable costs that may arise during the BIM process. This would require clear guidelines to work properly.
Another aspect highlighted prominently in the March 2011 report is the management of risk during the transfer of the BIM model(s) between the different stages of construction. The building blocks for managing this risk should be provided for in the clauses dealing with the Model Manager. It would be the responsibility of the Model Manager at each stage of transfer to take a 'snap shot' of and archive a copy of the final position of the model at that stage. In this way, if liability issues occur it would be easy to identify at what stage error was introduced into the model(s).
The last issue is the nature and ownership of the final product of the BIM process, especially in terms of future uses for facility management. The end product of the BIM process should be a BIM model and a completed project, while the ownership of the latter is not in question, the former requires further examination. In the UK the end product for government projects would also be COBie. COBie is defined as 'a spread sheet data format that contains digital information about a building, it is often thought of as a subset of a building model'. COBie's focus is on delivering building information not geometric modelling. The COBie specification would set out the format of the information and the content of the information required.
The deliverables desired by the Employer for each project will determine the contractual terms regarding the format, ownership and future uses of the BIM model and COBie.
However making a 3D-5D BIM model a contract deliverable raises some interesting legal issues on liability of the model creators. For instance, would the completed model be a product subject to the strict liability rule under the Sales of Goods Act 1979, with implied terms of satisfactory quality and fit for purpose? Being a specialist product would the product creators be liable if they do not advise the purchaser (the Employer in this case) of problems which ought to be reasonably known about the product, i.e. data degradation errors that may develop over time? It seems at least at the onset, that when making BIM model a deliverable it is prudent to expressly exclude implied terms and negotiate a bespoke set of warranty obligations linked to the long term use and performance of the model.
Conclusion
In writing this article I sought a wide range of views; one interesting input was that the BIM technology has been in use for sometime in some selected high value projects in UK and Ireland. When I enquired how those projects handled the legal issues arising from adoption of the BIM process, I was informed that the BIM information was shown to the client (Employer) and its advisors on the basis that it was 'indicative', 'for information only' and 'subject to change without notice'. Obviously such blanket limitation of liability would not be a part of the BIM collaboration being envisaged.
The landscape of professional practice and construction will change with the introduction of BIM. The risks of using BIM are far outweighed by its benefits. The issues I have identified above could be covered in a simple standard amendment that can be incorporated by reference into the various contracts in use in the industry to minimize risks and ensure successful BIM powered projects.
