Author: David Weare
This article was previously published in the Association for Project Safety’s magazine Digest.
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.
When I wrote a year ago about the legal implications of BIM, there had been some debate over the need to draft new standard contracts to cover its implementation. The CIC/BIM protocol now seeks to address this issue. Published in February 2013, and defined as a ‘contractual wrapper’ to a BIM project, the protocol confers obligations on suppliers to provide defined levels of detail under the government-led BIM strategy.
The protocol has been designed to apply to the Level 2 usage of BIM. This was clearly a disappointment to some who wished to see its implementation cover more sophisticated BIM usage, however it was deliberately applied to Level 2 usage in order to comply with government requirements and ensure adoption throughout the industry.
There are crucial legal implications to note that flow from the protocol. A model ‘enabling clause’ is contained within the protocol’s guidance notes. Aimed at allaying fears from industry insiders that the protocol would conflict with the terms of the relevant contract, the clause allows for a party to comply with and benefit from the rights and limitations contained within the protocol. The protocol itself is intended to slot into two-party contracting scenarios so; where a team of consultants is appointed, particular care must be taken to ensure the BIM obligations pass to the main contractor in a post-novation scenario.
Ownership of the BIM model has the potential to cause significant headaches, as the model itself will likely be owned by the project, whereas the data will be owned by various other parties. Ownership and risk management considerations should be foremost in the parties’ minds when entering into an agreement; it is likely, for instance, that cost and time disputes arising from the use of the model will fall outside of the principles of extension of time contained within the main contract. It is therefore vital that parties allocate which parties will bear the risk and liability for each stage of the process. Similarly, the ownership of the final product – i.e., the completed BIM model – will determine the contractual terms of the ownership and future uses of the BIM model. It may be necessary for parties to negotiate a bespoke set of warranty obligations covering the use and performance of the final model.
Similarly, in any BIM project, a BIM manager will need to be appointed. This raises further issues: for example, who appoints the BIM manager and what happens if he or she needs replacing. The predominant thinking within the industry is that the employer should appoint the BIM manager (primarily to drive cost savings during the course of the project); however, under a standard form design and build contract, the principal contractor may be more appropriate. Parties would perhaps be best served by assessing on a project-specific basis, taking into account the form of contract they are entering into and their chosen procurement route. They will need to ensure that the role, duties and cost of the manager are defined prior to the start of the project.
Finally, the adoption of the protocol means that design participants are being asked to give up far more intellectual property rights than they ordinarily would under an assignment. Whilst the protocol makes it easier to obtain the rights to use material, it makes it harder for businesses to retain overall control of IP rights. The protocol supersedes and specifically varies any existing IP rights contained within the underlying contracts. The usual construction project set up would involve the grant of a license to an employer on a royalty-free basis for the duration of the project; the employer can then sub-license it down the chain of contractors up to a defined limit. Under the protocol, these limits are removed and there is every chance the looser dissemination of information could lead to IP ending up in the hands of rivals and competitors.
Slow on the uptake? In light of this new guidance, it seems not unreasonable to think that the industry’s adoption of BIM would be far advanced from its rather coy and uncertain position a year ago.
Whilst the legal issues are perhaps rather knotty, there are many other more prosaic considerations for the construction industry to tackle if it is to fully embrace BIM. A recent survey by the Royal Institution of Chartered Surveyors (RICS) uncovered a basic lack of knowledge throughout the industry. Specifically, only 35% of facilities management professionals had even heard of BIM. Compare this with the USA. A recent survey carried out by McGraw & Hill showed that construction companies using BIM had jumped from 17% in 2007 to 71% in 2012 (source: Navigant Consulting).
It has been suggested that education of BIM needs to begin even further down the line. In a recent article for Building magazine, the UK’s ambassador for growth cautioned that the greatest impediment to the full implementation of BIM was an ignorance at all levels of industry, and the professional knowledge of the model was being stymied by a lack of collaboration and team work. Ignorance of BIM is by no means confined to industry professionals: clients claim a similar dearth of knowledge. It is little wonder that BIM has been slow to take root if the clients don’t know what’s on offer and the industry is unable to make a sales pitch.
However, it is not all doom and gloom. The government backing and increased guidance will mean that, inevitably, clients and professionals will begin to embrace the technology, not least those who seek government contracts. Industry insiders have also been keen to extol the benefits of the new technology, acknowledging its positive impact on team building. A recent survey by National Building Specification (NBS) found that BIM use had increased by 26% in the two years from 2011 to 2013. Change, then, is being embraced and the construction industry is hopefully a better place for it.
David Weare, Partner, Fladgate LLP (firstname.lastname@example.org)