As is well known, the Government wants the majority of its service providers to be using 3D BIM to what is known as Level 2 by April 2016. Level 2 requires the presentation of data in specific, separate databases integrated by using proprietary interfaces, or bespoke "middleware", by a BIM co-ordinator. Commercial data is held separately. Level 3 envisages a wholly integrated model accessed by all members of the project team in real time. That is some way off yet.
Exactly what "Level 2" means in itself is a matter of some debate. The ideal fully integrated BIM model envisages a single project model, platform and database allowing parties to integrate their designs fully. It is perhaps unlikely, although not impossible, that this will be achieved by the 2016 deadline. It is more likely that we will see a series of federated models linked by discipline-based software with individual proprietary databases that have a degree of interoperability. Asset data drop will be used via the BS 1192-4 framework, which provides for a series of defined data drop stages.
For now, and in practical terms, what we need is a clear, contractual framework which all parties can sign up to, hopefully at the earliest opportunity, and which regulates the information flow between the parties. Central to this is the BIM Protocol, which sets out who does what and when.
What will the Protocol look like? The BIM Protocol produced by the American Institute of Architects divides the design and construction process into Levels of Development (LODs) and defines who does what at which stage. This results in a table which can be used to cross-refer the parties' obligations and liabilities at any particular point in the project. The tabular approach is the way that things will go, allied either with cross-indemnities in relation to consequential losses, or the express limitation of a party's liability to the extent of its contribution to the model at any given LOD. The CIOB draft complex projects contract adopts this tabular approach, as does the CIC BIM Protocol. The CIC BIM Protocol is now available for download from CIC and is due to be mandated for use on central government contracts from 2016, http://cic.org.uk/publications/. Consequently it is likely to become the working template for BIM Protocols in the UK, although whether it becomes the accepted "default" option remains to be seen.
In relation to IP and model ownership issues, licences to use the model will be granted by the employer to the participants but only for the purposes of the project and only to the extent that each participant feeds into the model. Again, it is likely that each party will cross-indemnify the others in relation to infringement of IP rights. The employer usually ends up owning the model and the data at the end of the construction process. This does raise the question of what happens after the construction process is completed and the model is being used in the maintenance of the building. Who will own the IP rights and the proprietary systems installed in the building?
The Protocol should be capable of being incorporated into existing standard contracts using fairly short introductory clauses. There are still a number of things to be sorted out, such as where the Protocol will sit in the contract hierarchy and the extent to which specific obligations in the Protocol need to be incorporated into the main contract. In my view, the Protocol should sit fairly close to the top of the contractual hierarchy for obvious reasons and there needs to be some development of clauses within the main contract which recognise the parties' obligations to comply with the Protocol. We also need to decide who will be required to sign up to the Protocol. I can see no reason why every party up and down the supply chain who will be entering into the Protocol should not be contractually required to do so shortly after signing their contract. Undoubtedly there will be attempts to offload risk by inserting clauses unreasonably limiting the extent of a party's liability to others in the supply chain. Watch out for these in the future.
As is well-known, the most extensive use of BIM will be in relation to the maintenance and refurbishment of existing assets rather than new build. This is recognised by the Government through the linking of the Government Soft Landings policy (GSL) with the development of BIM, transferring ownership of the GSL to the BIM Task Group. BIM is seen as a significant tool in the implementation of the GSL policy and we can expect to see further development of these principles in the not too distant future. In the meantime, if you are interested the soft landings concept is explored and explained in a number of BSRIA publications dealing with the framework (BSRIA BG4/2009) and the core principles (BSRIA BG38/2012).
There was a very measurable increase in interest in BIM in 2012 and this is likely to develop further in 2013. The Government is already looking to put in place an industrial strategy for BIM which will see it being developed further as a major export opportunity in the global construction market (see the Government's Industrial Strategy: Government and Industry in partnership publication available from www.bis.gov.uk). The bedrock for this strategy is of course embedding BIM into the domestic sector, and a major element of that process will be organising the legal and contractual framework with clarity and, hopefully, some degree of common sense.
