In the UK, there continues to be considerable comment about Building Information Modelling (or BIM). BIM is a way of approaching the design and documentation of a project by utilising 3-D computer technology which is shared amongst the design and construction teams, incorporating cost, programme, design, physical performance and other information regarding the entire life cycle of the building in the construction information/building model. It is clear that the use of BIM is increasing. An NBS survey of the construction industry conducted between December 2012 and February 2013 found that 39 per cent of respondents were using BIM, which does not sound a lot but it was up from 13 per cent in 2010.
In the UK1 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 3-D computer model (Level 2) by 2016, with all project and asset information, documentation and data being electronic. Cabinet Minister Chloe Smith, speaking at the BIM4SME Building Information Launch on 15 April 2013, said that BIM lies “squarely at the heart of” the Government’s push to reform the construction industry, that it was “a great leveller” and “was becoming a catalyst” for growth. That said, currently there are many different types of BIM models being used in the market and certainly not everyone will have the means to use BIM in the short/medium term which will lead to duplication as hard copy drawings are still required – for example planning authorities still require hard copy drawings.
This rise of BIM will only continue if the trial projects are a success. And it has been widely reported that the Cookham Wood prison is proceeding very well, with over £800,000 of savings apparently having been achieved in part by taking the staff on a virtual walk through at an early stage in the design, enabling a discussion over what was and was not needed, and also again through discussions at an early stage with the contractor over what needed to be done to achieve the necessary BREEAM ratings.
It is important to remember that BIM is not simply the use of 3-D 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 Guide 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. The reason we say this is 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 general view 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 2011” (the only standard form contract that actually refers to BIM at the moment) suggests incorporating a “BIM protocol” as a “Contract Document”.
“In the definition of ‘Contract Documents’ insert after ‘Contractor’s Proposals’ any agreed Building Information Modelling Protocol.”
On 22 April 2013 the NEC published the first set of major amendments to the NEC3 suite since it was first published in 2005. As well as the introduction of a new Professional Services Short Contract and provision being made for the use of project bank accounts, the NEC published seven “how to” guides including one entitled How to use BIM with NEC3 Contracts. This includes guidance on using the CIC BIM Protocol. It also provides suggested additional clauses for use with each of the main NEC3 Contract forms, the intention being that they are included as additional contract clauses under Option Z. Unsurprisingly, the Guide also says that it is important to include as part of the Works Information or Scope any particular information requirements and also tables which may be required, for example, in relation to the timing of model production or manner (i.e. use of software) in which it is to be produced.
The Guide also suggests the need to include additional compensation events: first, where a party is unable to provide its model as required because of events outside of its control; and second, in acknowledgement of the difficulties that may arise if an employer is obliged to revoke any sublicence that may have been provided to use information provided by others. In these circumstances, it may be necessary to remove that information for your own model.
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?
In the UK there are at least two protocols. According to the AEC (UK) BIM Protocol, the purpose of the protocol is:
- 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 place of the BIM protocol in the priority of the contract documents;
- The obligations of the Employer and project team member;
- Who should appoint the BIM Information Manager and when?
- Who is to produce the models? And in what format and by when?
- The use of models. Who can amend data once it is incorporated? Can you look but not touch? What are the limitations (if any) on liability associated with models?
- Copyright. The need to grant licences related to permitted purposes.
The CIC BIM Protocol4
In March 2013, the Construction Industry Council (CIC) published its much anticipated Building Information Modelling (BIM) Protocol. The CIC Protocol is intended to set a standard for the future and was published alongside two other BIM documents: Best Practice Guide for Professional Indemnity Insurance when using BIM and Outline Scope of Services for the Role of Information Management. The CIC BIM Protocol is UK-wide and is specifically for the use of Level 2 BIM.
The intention was to produce a simple document which can be added to standard forms of contracts and appointment documents. The CIC Protocol, in eight clauses, establishes the contractual and legal framework for the use of BIM on a project and clarifies the obligations of the team members. There are also two appendices which will need to be carefully considered and completed. If it is accepted in the construction industry as a standard document then it is thought that this will encourage the use of BIM.
The CIC Best Practice Guide for Professional Indemnity Insurance suggests that professional indemnity insurers do not currently consider that there are any significant issues with Level 2 BIM. Indeed, the use of BIM itself should reduce the number of claims against insurers. This should mean that the effect on premiums will be minimal.
This is one of the intentions behind the production of standard form documents like the CIC Protocol. That said, as the CIC recommend, if undertaking BIM for the first time, it would be sensible to check with insurers and brokers before commencing a project to make sure everyone is happy with the contractual arrangements and the role you are going to play. The idea behind the CIC Protocol is that it would be incorporated as a contract document using the standard enabling provisions that have been provided. It should take precedence over other documents in relation to BIM matters. It therefore fits neatly with the approach of the JCT and NEC, the latter, for example, having suggested that the CIC Protocol needs to be inserted into the Works Information.
Clause 3.1 of the Protocol says that the Employer should arrange for the Protocol to be incorporated into all the Project Agreements – an important requirement. The same clause also requires that the Employer ensure that there is a BIM Information Manager appointed at all times during the project.
The CIC has also prepared details of the scope of services of the Information Manager. There are two versions: a detailed version compatible with the CIC scope of services, and a simpler version said to be suitable for incorporation with any appointment. It is important to remember that the Information Manager should have no design-related duties. The Information Manager’s role is to manage the processes and procedures for information exchange on projects. They will therefore be responsible for initiating and implementing the Project Information Plan – who does what and when.
Clause 4 sets out the obligations of project team members. They must produce models to the specified level of detail. This is subject to the same level of skill and care required under the main appointment. Other obligations, such as the incorporation of the Protocol into subcontracts, are subject to a reasonable endeavours’ obligation.
Clause 5 deals with what happens if data becomes corrupt. Here clause 5.1 expressly states that the Project Team Member does not warrant, expressly or impliedly, the integrity of any electronic data delivered in accordance with this Protocol. Further by clause 5.2, it appears clear that it is the Employer who bears the risk for “any corruption or any unintended amendment modification or alteration of the electronic data in a Specified Model which occurs after it has been transmitted by the Project Team Member, save where such corruption, modification or alteration is a result of the Project Team Member’s failure with the protocol”. An Employer may well consider that this will need to be altered in a design and build project. And indeed, clause 11.3.4 of the CIOB Contract for use with Complex Projects provides that a Contractor required to design the whole of the works using BIM shall: “select and remain solely responsible for the suitability and integrity of the selected software and any information, drawings, specifications or other information extracted from the model”.
In this regard, the CIC Protocol has taken a different approach to international protocols. The American ConcensusDocs 301 simply states that: “Each Party shall be responsible for any contribution it makes to a model or that arises from that party’s access to that model.”
Clause 6 deals with intellectual property (IP) rights. The traditional approach is for the lead designer to retain copyright in his designs whilst giving a licence to the client, tenants, etc. to use the designs, normally for purposes associated with the construction, maintenance of the building, etc. The licence is often (but not always) irrevocable and will remain in place even if the designer is not paid. The CIC Protocol clearly states that the use of the BIM model is limited to the particular project in question and that the information loaded onto that model remains the property of the party that produced it. 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. One potential problem may come if one of the parties suspends the licence it has offered for use of its model. This could cause serious disruption to a project. The best, if not only, way to deal with this would be to make the licences irrevocable.
However, in general, the CIC Protocol does achieve its aim. Using the CIC Protocol should not lead to substantial amendments to existing contracts. However, as with all contracts and all standard forms and amendments, it is important to make sure that the contractual documents and project specifications fit the demands of the particular project.
Who is the BIM Manager?
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 Coordination 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 PAS 1192-2:2012 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 whether it was 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 PAS 1192-2:20125 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 to that 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 a BIM protocol; otherwise a potential conflict arises with regard to design and design coordination roles.
The RIBA Plan of Work6
The RIBA Plan of Work was published in May 2013. Replacing the traditional eleven stages defined by the letters A–L, are eight stages defined by the numbers 0–7, and eight task bars. BIM is an integral part of the Plan of Work and the RIBA recognises the importance of properly establishing the project team at an early stage, especially given the increasing use of technology that enables remote communication and project development using BIM. In this, the RIBA is recognising a move away from the traditional design team. At the same time, it focuses on who amongst the project team does what, when and how.
One of the main points of BIM is to allow the design to start more promptly and in more detail. However, this can only be done once everyone’s roles have been identified. This is why the RIBA Plan of Work 2013 has a Project Roles Table to try and assist in the development of the project team. The Plan of Work also provides for a Schedule of Services as well as encouraging the preparation of a project programme agreed by all members of the project team. This will of course need to align with any construction programme produced by the contractor.
The Plan of Work advocates the development of a technology strategy which is established at the outset of a project. As you would expect, this should set out the technologies, specific software packages, including Building Information Modelling (BIM), and any supporting processes that each member of the project team will use. The strategy can also include details about how information is to be communicated, including the file formats in which information will be provided and any file-naming protocol. This information can then be set out in a Project Execution Plan and should help in ensuring that information can be used and shared. As the RIBA states, any interoperability issues can then be addressed before the design phases commence.
The fact that the NEC has prepared a “how to” guide rather than sought to introduce widespread revisions to their contracts, demonstrates that at Level 2 at least, from a legal point of view, there is no need to make substantial changes to your contracts. 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.
It is far more important to understand what you (and others) are being asked to provide in terms of BIM, and when you need to provide it. It is equally important that someone in your organisation is tasked with keeping up to speed with the developments, both contractual and technical.
In the introduction to the RIBA BIM Overlay, author Dale Sinclair uses the term “BIM(M)” meaning “Building Information Modelling and Management” – an important reminder that BIM is not only about the technology. It is just as important to be able to manage the use of that technology as well.