It seemed as if there might never be a reported case on BIM: perhaps because of the apparent transparency and/or collaboration inherent in BIM? In any event, here it is. Trant Engineering Limited v Mott MacDonald Limited1
In this case, the Ministry of Defence employed Trant in May 2016 to provide a new £55m power generation facility at the Mount Pleasant Complex in the Falkland Islands, the Mid-Atlantic Power Project. During the tender period for this project, Trant had engaged Mott MacDonald to provide design consultancy services, including preliminary design, detailed design, design coordination, preparation and implementation of BIM and procurement support, principle designer responsibilities and the development of the DREAM assessment (an environment assessment throughout the design stage).
Mrs Justice O'Farrell described BIM in this way:
"The BIM system is building information modelling. It comprises a software system which is intended to assist the design, preparation and integration of differing designs and different disciplines for the purposes of adequate and efficient planning and management of the design and construction process."
Mott MacDonald intended to implement the use of an engineering project software programme called ProjectWise so as to enable the design teams to manage, share and distribute design data on a single platform.
In July 2016, after Trant had notified Mott MacDonald that they had been given the green light to go ahead with the project, Mott MacDonald emailed to Trant a proposed contract and schedules regarding its scope of services and terms of payment. Trant did not respond to Mott MacDonald’s proposed contract, nor did it sign and return the contract.
The relationship between Trant and Mott MacDonald eventually broke down. In April 2016 Mott MacDonald issued an invoice claiming the sum of £475,000. Trant did not pay that invoice and it did not issue a pay less notice. Trant did pay Mott MacDonald £500,000 on account in early 2017. In May 2017 Mott MacDonald issued a further invoice claiming £1,626,000. Trant did not pay that sum and in June 2017 Mott MacDonald denied Trant access to the servers hosting the ProjectWise design data by revoking the passwords that had been issued to Trant in March 2017.
The dispute between the parties concerned what services Mott MacDonald was to provide, the value of those services and what sums of money Mott MacDonald was entitled to receive. In addition, the parties disputed whether a contract existed and whether the terms of any such contract entitled Trant to access the design data Mott MacDonald had prepared which was stored on ProjectWise.
Ultimately Trant applied to the Technology and Construction Court for an interim injunction that Mott MacDonald should provide access to the design data on ProjectWise. Trant also sought an order entitling itself or other third parties in connection with the project to use that design data.
Trant argued that a contract did exist and that the terms of that contract included the obligation for the BIM preparation and implementation. The proposed contract also included an intellectual property provision which granted Trant a licence to use Mott MacDonald’s intellectual property in connection with the project. Whilst it was agreed that Trant had not responded to Mott MacDonald’s proposed contract in July 2016, Trant considered that it had accepted those terms and conditions by performance in making payments to Mott MacDonald.
Furthermore, Trant argued that Mott MacDonald carried out its services in accordance with the schedules attached to that proposed contract.
Mott MacDonald argued that a contract did not exist. Mott MacDonald made the point that there was no express acceptance of the contract and that the fees payable, contract terms and scope of its services had not been finalised or agreed.
On the documents before it, the Court was not able to determine whether or not a contract existed between the parties – that was an issue to be decided at a full trial. The Court, however, was satisfied that there was a serious case to be tried, that damages would not be an adequate remedy and that there was a high degree of assurance that Trant was entitled to the design data that Mott MacDonald had already carried out and that was sitting in the public database area of ProjectWise. The Court noted that even if there were no contract, Mott MacDonald had already accepted payment on account in respect of the work that it had carried out.
The Court also had to consider the question of the balance of convenience and which course of action was likely to carry the least risk of injustice if it turned out to be wrong.
Trant argued that without restoring access to the relevant database on ProjectWise, the project could not be progressed: Trant would be forced to start the project over again, losing a year of progress. Trant also argued that there would be little harm to Mott MacDonald in providing access to the design data that it had already provided, particularly in circumstances where Trant was prepared to pay compensation, whether by way of outstanding fees or damages that might subsequently be ordered.
Mrs Justice O'Farrell agreed and considered that the balance of convenience lay firmly in granting the injunction. She therefore ordered Mott MacDonald to make available the design data that had already been procured and completed to date. This would allow Trant to progress the project. Access was permitted only to the public folders which were intended for use by Trant.
The Court also ordered Trant to make payment into Court of £475,000, pending resolution of the dispute. It was of the view that it was fair and reasonable that Trant should put up the money in respect of a sum that was invoiced and in respect of which it had failed to issue a payment notice.
Common Data Environment (CDE)
As the NBS states, the common data environment (CDE) is “a central repository where construction project information is housed. The contents of the CDE are not limited to assets created in a ‘BIM environment’ and it will therefore include documentation, graphical model and non-graphical assets…”2 All parties have access to the CDE and the coordinator of the CDE provides codes or passwords to the platform, allowing access for those parties entitled to it.
PAS 1192-2 states:
“[the] advantages of adopting such a CDE include:-
- ownership of information remains with the originator, although it is shared and reused, only the originator shall change it;
- shared information reduces the time and cost in producing co-ordinated information;
- any number of documents can be generated from different combinations of model files.”
The coordinator of the CDE therefore plays a critical role in terms of hosting and allowing access to the data for the entire project.
As Trant v Mott MacDonald reminds us, careful consideration should be given to the identity of the CDE coordinator and the terms on which each participant has access to the data. Depending on the project, taking the approach that the employer should safeguard the progress of the project and control the CDE may well not be the most efficient way of working. Indeed it may not even be possible given the employer’s resources and capabilities. In order to avoid bringing the project to a halt when disputes arise, parties may want to put in place, where possible, procedures for alternative access to backup copies or otherwise.
The highlight of 2016 was the UK government’s implementation and requirement for BIM Level 2 on all of its projects. Whilst the jury is out on the extent that the government's aim has been achieved, there is no doubt that it provided impetus for the increased use and take-up of BIM.
Now in 2017 we see the first BIM issue reaching the courts. Whilst Trant v Mott MacDonald is a reminder of the importance of considering which party is best placed to host the common data environment and any issues which this might bring, it also highlights the importance of agreeing fundamental obligations (such as scope of services) at the outset of a project. Contracts such as the new NEC4, released on 22 June 2017, are starting to address certain fundamental BIM issues: liability, use of the model, ownership, information requirements, etc. Parties need to embrace dealing with these issues in their appointment at the outset.
Consideration and agreement of all consultant appointments/obligations in advance of any work being carried out, including the detailed terms, conditions and scope of services regarding BIM, is likely to assist in minimising disputes. In Trant v Mott MacDonald, denying access to the CDE was a by-product of a wider dispute regarding scope of services and payment.