Author: David Weare
To improve is to change; to be perfect is to change often, or so said the nation’s favourite Briton, Sir Winston Churchill. Advances in computer technology have dramatically changed the way we work and live. However, technologies in construction have fallen behind other industries. This may be because, unlike manufacturing, construction operations are rarely performed in a fixed sequence or at a fixed location. One only has to look at the aeronautical and motor industries to see how the use of three dimensional computer technologies has driven progress; the same cannot be said in construction. With the advent of Building Information Modelling (BIM) this imbalance has been tackled head on.
The term BIM should now be familiar to all of us. To recap, it comprises the use of three dimensional, real time, dynamic, building modelling software to increase proactivity in the design, construction and operation stages of a construction project.
BIM maturity levels in the UK range from level 0 to level 3. At advanced level 3, BIM requires the construction team to collaborate on the creation of a single project model, accessible by all, to show physical dimensions, design co-ordination, sequence, cost information and operational life and functions. The model comprises a pool of information with contributions from key members of the design, construction and maintenance teams. At the moment, the emphasis in the UK is on BIM level 2. This requires the construction team to contribute individual models. There is no single database, although information and commercial data may be accessed using appropriate software.
The government believes that BIM is the future. In May 2011 it published its construction strategy which declared that all public projects must use the three-dimensional BIM level 2 by 2016. In light of this stated intent, how should the industry adopt BIM and what are the legal implications?
There has been some debate on the need to produce new standard forms of contract to cover issues such as intellectual property rights, BIM liabilities and insurance obligations. In the alternative, wide parts of the industry advocate the use of a BIM protocol to supplement standard form contracts to accommodate BIM. The Construction Industry Council (CIC) is working up a suitable BIM protocol for public works.
In our view standard form construction contracts and appointments can accommodate BIM level 2. We are involved in the development of the BIM protocol, which we recommend should deal with conflicts and priority of documents and contractual provisions. It should also indicate which particular model takes priority in the event of conflict and/or discrepancies between the other models. The collaborative nature of the contract structure should be addressed in any protocol; in particular, the parties should have an express obligation to work together in the spirit of trust, fairness and mutual co-operation for the benefit of the contract within the scope of their agreed roles, expertise and responsibilities.
Even BIM level 2 will require additional professional duties to be performed by a model manager. There are different views on the need for a new BIM appointment. The CIC draft protocol suggests that the industry should determine how to allocate this role and what the particular responsibility should entail. Perhaps the answer lies in the form of contract and the chosen procurement route. A model manager appointed by the employer may be best placed to assist in cost savings at various stages of the project, but in all likelihood employers will wish to distance themselves from the role, to ensure that liability for co-ordination of the design process in the model stays with the design team.
There is something to be said for an employer appointed model manager to drive cost savings during the course of the project, with the particular role being transferred to different members of the team at different times. Whatever the case, there is consensus within the industry that the role holder should have the power to issue binding instructions to ensure design information is properly co ordinated.
As BIM level 2 requires separate BIM models, it is imperative that each team member has a licence to use any other models created for the project for a permitted purpose. The permitted purpose will be important as it will be necessary to protect individual project members from misuse of the model and/or the data upon which it relies.
Fully collaborate BIM, or BIM level 3, is where the more interesting legal issues will arise. The parties will have to determine responsibility for managing the model, producing the design, procuring and dealing with software, and the duty owed by one designer to another.
A recent case in the USA demonstrates some of the potential hurdles with integrated or BIM level 3. On a university build an architect, a mechanical engineer, an electrical engineer and a plumbing engineer used BIM to design a system to be installed into a ceiling void. The contractor was not informed of the tight fit of the components which relied on a specific installation schedule. A problem arose following a breakdown of communication between the client, the design team and the contractor. When the build was more than two thirds complete the contractor realised it could not fit the system into the remaining space. The parties sued one another. The matter eventually settled; however, it is generally understood that the contractor, the architect and the engineers all shared the costs, which were substantial. The BIM indicated that the components would fit perfectly; however, the issue of sequencing was overlooked. A lesson to all: BIM is only as good as the people using it.
Any change, even a change for the better will invariably have drawbacks and discomforts. BIM requires significant upfront work to establish the initial project framework; it is by no means cheap and requires substantial investment in computer hardware to operate effectively. On the other hand, the advantages are plain to see. Take BAM, who signed a contract with Autodesk to provide BIM technology across its global operations. On its first major scheme to use BIM it declared cost savings of £350,000, a reduction of 15,000 man hours and an 8% reduction in material wastage. Furthermore, the BIM identified design problems which BAM estimated saved it a further £400,000 (Building Magazine 12.10.12).
Like it or not BIM is here to stay. Join in the debate and remember the immortal words of Harold Wilson: "the only human institution which rejects progress is the cemetery".
David Weare, Partner, Fladgate LLP (firstname.lastname@example.org)