What is BIM?

Broadly speaking, Building Information Modelling (BIM) involves the sharing of information and data by those involved in designing, constructing and managing a building (or other structure), to create a comprehensive model for use throughout the building's life. BIM's advocates state that through greater collaboration and sharing of information, the construction industry can improve design, reduce costs and generate long-term efficiencies.

However, the precise meaning is likely to vary from project to project, and from person to person. The Government's BIM strategy paper (published in March 2011) defined four 'maturity' levels (0 to 3) which can be used as a guide.

In brief, Level 0 is unmanaged Computer-aided Design (CAD), probably 2D. Level 1 is managed CAD in 2 or 3D format where there is no integration with finance and costs data. Level 2 is presented in 3D format which may utilise programme data (4D) and cost elements (5D). There is no single database. In contrast, Level 3 does adopt a single integrated web-based data system with open access. It can also include project lifecycle management information (6D), in addition to programme and costs data.

By way of illustration, BIM has been used successfully on a hospital project in the US (discussed in Model approach brings multi-level success - Health Estate Journal, August 2012) in relation to the use of 3D models for mechanical, engineering and plumbing co-ordination. 3D models were utilised to identify conflicts among the trades and the structural model. They also enabled extensive prefabrication of the structural steel system. The 5D models were developed to determine accurate quantities of materials, and schedule pre-ordering of long-lead items. The use of BIM also avoided the need for deep excavations, therefore minimising disruption.

There is ongoing debate around how well suited current practices and contract forms are to operation, even at Level 2. Here we highlight and summarise some of the key practical and legal issues that parties should consider before embarking on a 'BIM-enabled' project.

Practically speaking...

So that all parties are aware of what is expected of them, businesses will need to consider the following points (both within their own organisation and wider project team) and decide next steps in the process at an early stage:

  • what models are to be produced;
  • the desired purpose(s) of the model;
  • the software that should be used - consistency in the supply of information will be vital;
  • who will 'own' the model; and
  • who is best suited to managing the process (we refer to a 'BIM manager', but that could be any of a range of parties such as the project manager, the lead designer or the contractor).

BIM 'maturity' should also be considered as part of the selection process for professionals and contractors. At the very least, in the early years of use there is likely to be a wide disparity between the experience and preparedness of construction professionals for the utilisation of BIM. A project's success will be contingent on the team's engagement with the process and its ability and willingness to collaborate.

Will my contracts need to change?

The Government's BIM Working Party has suggested that no substantial changes will be needed to the main standard form contracts to accommodate BIM Level 2. This approach has been supported by the publishers of the JCT and NEC standard forms of contract. The JCT 'Public Sector Supplement' suggests incorporating a 'BIM protocol' as a 'Contract Document'. Added to this, the publishers of the NEC contracts have suggested that no amendments need to be made, but that a BIM protocol should be included in the Works Information.

This will impose obligations on a contractor to comply with the protocol. However, consideration should also be given to whether any obligations should be placed upon the client in relation to compliance with BIM methodologies and procedures to facilitate collaborative working.

Parties should also consider the level of priority they intend the BIM protocol to have in relation to the other terms of the contract, in the event of a conflict. Ideally this should be set out expressly in the contract.

What should a BIM protocol look like?

BIM protocols will need to set out the vital BIM methodologies and arrangements for the specific project including: the roles and responsibilities of team members, the use of common software and standards, key deliverables and information sharing arrangements. They will need careful drafting to ensure the content reflects the proposed arrangements.

The 'commercial work stream' of the Government Implementation Task Group is in the process of commissioning a standard BIM protocol. The Task Group hopes to publish this for amendment and use with various forms of contract this year.

Consultants

BIM protocols will also need to be incorporated into professional team appointments. Clients and consultants alike will need to consider the degree of amendment needed to their scope of services to ensure collaboration and co-operation in the BIM process at varying levels of maturity. Industry bodies are beginning to respond to this need; the Royal Institute of British Architects (RIBA) has produced a 'BIM overlay' to the RIBA Plan of Work. This is likely to be of use in setting out an architect's BIM-related roles.

The role and responsibility of the designated 'BIM manager' will also need to be considered: should this be a stand-alone role or an additional service provided by another consultant, such as the architect? And what level of responsibility will the BIM manager have for identifying mistakes, or failing to provide adequate co-ordination of the design?

Other issues?

The Government Working Group's strategy paper focussed on BIM at Level 2, but attention should also be given to the other levels. While widespread use of BIM at Level 3 may seem some way off, there are a number of other issues that warrant serious consideration as parties work towards Level 3.

  1. Information sharing, intellectual property and confidentiality

Information sharing and collaboration are at the heart of BIM. Designs and data are to be shared not just for use during the construction process, but also with facilities management and ongoing maintenance in mind. Therefore parties should consider:

  • Who will need a licence to utilise the intellectual property (IP) within the model? Will the current drafting of copyright licences be sufficient to cover all intended uses?
  • Whether the level of collaboration expected between designers will create difficulties in identifying each party's distinct contribution, and therefore ownership of the IP.
  • Whether any confidentiality and non-disclosure obligations are required to protect the shared information, particularly where it is commercially sensitive?
  1. Allocation of liability

Increased collaboration and integration of information may also add to the complexity in determining liability for negligent design. This may give rise to a number of issues:

  • To what extent are the various parties entitled to rely on information within the model in providing their own contributions? And what protection do the parties have if they rely on incorrect information?
  • Will it be appropriate for parties to increasingly require warranties from consultants, or could recovery for pure economic loss in tort be expanded? The latter has been suggested by some commentators.
  • Is the use of a "model element table", such as those in common use in the US, a convenient way of defining responsibility for each element of the model? Or, will this inhibit the amount of true collaboration that can take place?
  • To what extent should a contractor's obligations to comply with a BIM protocol (or elements of it) be subject to 'reasonable skill and care'?

The future?

The nature of BIM is such that its future is likely to see an increase in the use of collaborative forms of contract and the utilisation of alliancing and partnering concepts. Indeed, the PPC2000 (the Association of Consultant Architects standard form for project partnering) is stated to be uniquely set up for use for BIM level 2 (Building, 3 August 2012). Additionally, the new Chartered Institute of Building's Complex Projects Contract (which has been released for industry consultation) is stated to be the first standard form to be fully compatible with BIM (Construction Law, September 2012). An industry standard approach is expected to develop over time.

The Government has also proposed the use of "no fault" integrated project insurance as a solution to some of the liability issues raised by BIM. Such insurance would act as a replacement for the standard separate insurance covers traditionally required to be taken out under building contracts.

This approach is currently being piloted on a Ministry of Justice project, but it remains to be seen whether it will be taken up as the standard approach by the public and private sector. In the absence of such insurance, the contracts between the parties should be very clear as to what responsibility each party has for the model.