The Government has been a keen exponent of Building Information Modelling (BIM), requiring all Government projects to achieve BIM Level 2 since April 2016.
The Government’s strategy was informed by the BIM Industry Working Group, which concluded in March 2011 that “little change is required in the fundamental building blocks of copyright law, contracts or insurance to facilitate working at Level 2 of BIM maturity.”
This article will consider whether this relaxed view of BIM’s legal implications still rings true, six years later.
New technology, new risks?
Concerns have been expressed that BIM may contribute to increased risks for construction professionals, which will translate into higher professional indemnity insurance premiums. For example, a small design error by a consultant may have far reaching consequences if all parties are relying on a shared data set rather than producing independent drawings and calculations.
However, as the adoption of BIM technologies has increased, it is reassuring to note that there are still very few court cases which mention BIM. In the US, a lawsuit is reported to have arisen in relation to the construction of a life-sciences building. Apparently the architect and MEP engineer used BIM to fit the building’s MEP systems into the ceiling plenum. However, the design team failed to inform the contractor that the BIM design required a very specific installation sequence, leading to predictably disastrous results during construction. The dispute was subsequently settled by the parties’ insurers.
However it is debatable whether BIM can fairly be blamed for this litigation. It seems that the real cause was a simple failure to communicate, which could equally occur on a CAD designed project.
Indeed, the use of a level 2 BIM environment may actually reduce the risk of claims arising by:
- Early clash detection and fewer errors caused by inaccurate and uncoordinated information
- Embedded quality control
- Improved ability to visualise the project and assess the impact of changes
- Accurate and rapid generation of cost and quantity data
Followings a series of consultations with the majority of the professional indemnity insurance market on behalf of the Construction Industry Council (CIC), Griffiths & Armour reported an ‘overarching’ response that:
“there are no issues with level 2 BIM which are sufficiently serious as to require coverage restrictions for consultants which use it, nor will its use, all things being equal, materially alter the risk profile presented by a consultant, and therefore the premium implications will be minimal. You should, therefore, have little difficulty in obtaining assurance from your broker that this activity will fall within the range of activities contemplated by our PI insurers.”
However, the CIC best practice guide for professional indemnity insurance noted a number of factors which may affect the risk profile of a particular BIM project and cause concern to insurers:
- Bespoke BIM protocols should be addressed on a case by case basis with brokers and insurers, as the consultation assumed that the CIC BIM protocol would be used.
- Non-designers should be cautious about acting as Information Manager, as this may create (potentially uninsured) liabilities for checking/co-ordinating design.
- Design progressed beyond the level of detail required for a specific project stage may need to be redesigned and may not be reliable.
- The required level of specification should be passed down the contractual chain to subcontractors (who may be working in a traditional CAD environment).
- As BIM requires a greater level incidence of data sharing, there is a greater need to demonstrate provenance of documents and to show which changes have been made by the consultant (rather than by a third party following issue).
- If a model software or data licence is used on a project (i.e. a document determining who owns the intellectual property rights and who can use the model etc.) then care will need to be taken that the licence allows the model to be passed on.
- Undue reliance should not be placed on automated model checking software. For example, suppliers will usually exclude liability for claims that the building regulations have not been met.
The starting point is a well drafted BIM protocol. The 2016 suite of JCT contracts now require the contractor to carry out and complete the works in compliance with the relevant BIM protocol. In turn, NEC has published guidance on using BIM with NEC3 contracts, including suggested wording for a Z clause that can be used with the CIC BIM protocol.
The CIC BIM protocol is the benchmark for BIM Level 2 projects in the UK. It identifies the BIM models that will be produced by the project team and puts into place specific obligations, liabilities and associated limitations on the use of the models. However, the CIC BIM protocol is not without controversy. For example:
- It limits project team members’ liability for data corruption in the BIM model. This may leave clients exposed, particularly as the BIM software providers will also seek to limit their liability.
- It only requires project team members to use “reasonable endeavours” to deliver BIM models in accordance with the required level of detail and information requirements. This is a lower duty of care than usually expected and is also subject to events outside the team members’ “reasonable control”.
- The client’s licence use the BIM model is subject to revocation in the event of a fee dispute.
Standard building contracts and appointments usually contain provisions dealing with the use of copyright materials. However, in some cases the wording may require some redrafting to reflect the wider ranges of uses for copyright material held in a BIM environment and to cover other intellectual property rights such as database rights. Designers will need to consider the increased likelihood of joint authorship and whether they require any restrictions on the use of commercially sensitive data. Team members should also consider how the system will be protected from threats such as cyber-attacks, viruses, system failures and user errors (e.g. accidental deletions).
This article has outlined some examples of the contractual points to be considered when embarking upon a BIM project. At Level 2 BIM, the legal issues are unlikely to be significantly more challenging to resolve than the usual contractual negotiations. In contrast, achieving Level 3 BIM may require a more fundamental shift away from the traditional adversarial approach to contracting, which may in turn require the adoption of integrated project insurance
Ultimately, while there are always significant operational risks associated with the rapid deployment of emerging technologies, it may be those businesses which are unwilling or unable to keep up with the pace of innovation who find themselves most threatened by BIM.