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BIM – What are the Legal Implications?

March 16, 2012 | Construction Contracts, Professional Consultants

The Government Construction Strategy, which was published in May 2011, announced the Government’s intention to require the use of collaborative 3D BIM on all Government construction projects by 2016.

However, despite this strong public sector emphasis, recent surveys have indicated that many in the construction industry have little or no knowledge of BIM.

What is BIM?

BIM (“Building Information Modelling”) is a method of collecting and using information across a construction project. It involves the use of a digital model of a building which contains all available data about the design, construction and operation of the building. In this way, it effectively allows the structure to be built virtually before construction physically begins.

There are different “levels” of BIM, ranging from basic methods of data sharing to a fully collaborative 3D model which can be accessed by all members of the design and construct team. The Government’s emphasis is on the more sophisticated, fully collaborative level of BIM.

What are the potential benefits of BIM?

One of the main benefits of fully collaborative BIM is that it should allow contractors to detect “clashes” between different elements of the design of a building before construction begins. This will provide greater certainty about the outcome of a project and should lead to efficiencies and cost savings, including quicker and cheaper design changes. Another significant advantage of BIM is that it provides the end-user of the building with a workable model that can be used throughout the life cycle of the building.

Legal Issues

Fully collaborative BIM raises a number of interesting legal issues which the industry can currently only speculate about. In this bulletin, we examine some of the possible legal issues which may arise from widespread use of BIM.

How should BIM be dealt with in contracts?

BIM is not currently mentioned in any industry standard form contract or appointment. The Government’s BIM Working Group believes it will be necessary to produce standard BIM protocols to allow BIM-specific issues to be addressed in construction contracts and consultant appointments. Such protocols are likely to include (amongst other things) details of the modelling software being used, the process to be followed by designers when amending the model and the standards to be adhered to when working with the model.

It is anticipated that the use of BIM protocols will allow BIM to be implemented without requiring extensive amendments to existing standard forms of contract.

Who is responsible for managing the model?

On projects involving full 3D BIM, where a number of different parties are contributing to the model, it is likely that a lead consultant will need to be engaged to take on the role of “BIM Co-ordinator”.

The BIM Co-ordinator, who would probably be appointed by the Employer on traditional projects and by the Main Contractor on design and build projects, would be responsible for overseeing the production, use and alteration of the model. The need to develop the role of a BIM Co-ordinator over the coming years may result in the production of specific standard form appointments which reflect the particular requirements of this unique role.

It remains to be seen whether the BIM Co-ordinator will have any liability if there is a problem with the model which results in a defective building.

Who is responsible for design issues?

On projects where fully collaborative BIM is used, all parties with design responsibility should work together to produce one model of the building. If the building turns out to be defective due to a design fault, the collaborative nature of BIM may make it more difficult to identify the party who was responsible for the design of that aspect of the building. As a result, it is likely that design responsibility amongst members of the design team will need to be more clearly defined in contracts. It may also be necessary for contracts to state that collaboration with others does not affect the individual responsibilities of each designer.

Who is responsible for software problems?

There are various different types of modelling software on the market. In cases where each member of the design team has prepared their design using their own software and the different designs are fed into a single electronic model, it is unclear whether different software programmes will work together effectively. This may mean that clashes and design flaws are not detected, leading to errors in the model and defects in the building.

It is not clear who would be responsible for such problems. Responsibility could potentially lie with the software provider themselves, the party using the software or even the BIM Co-ordinator responsible for managing the model. To avoid this problem, it may be necessary to ensure that the same standard of software is used by all parties involved in the project, although this may have significant financial implications.

What duties do companies involved in BIM owe to others?

Imagine that an architect inputs some data into the model incorrectly and this affects the accuracy of the model. When the error is discovered, a sub-contractor, who also has design responsibility, incurs substantial costs in re-designing his aspect of the model to compensate for the error. Would the sub-contractor be able to recover his losses directly from the architect who was responsible for the error?

Assuming that the architect and the sub-contractor have no contractual relationship (which is usually the case), the answer is no. English law typically prevents parties who are not in contract with one another from recovering financial loss, except in very limited circumstances.

However, the nature of BIM means that parties who would not previously have had any relationship will now rely on each other’s expertise. To reduce the risks of being unable to recover financial loss in such circumstances, it may be that collateral warranties become more widespread and are more frequently provided in favour of parties who would not traditionally request them. Another interesting potential consequence of this problem is that new duties of care in tort could eventually be developed by the Courts to compensate for the lack of contractual relationship between different parties involved with the model. However, the law in this area moves quite slowly and it would probably be many years before such developments occurred (if at all).

Summary

The Government’s 2016 target means there will be an increasing focus on BIM in the coming years. However, the use of BIM on construction projects raises new issues relating to contractual responsibility and liability for defects which have not previously been considered by the construction industry.

At this stage, it is difficult to do much more than speculate about the legal implications of this new way of working. It will only be through practise and experience that the answers to these questions become clear.

 

This article contains information of general interest about current legal issues, but does not provide legal advice. It is prepared for the general information of our clients and other interested parties. This article should not be relied upon in any specific situation without appropriate legal advice. If you require legal advice on any of the issues raised in this article, please contact one of our specialist construction lawyers.

Wakefield Office

17 Navigation Court
Calder Park
Wakefield
West Yorkshire
WF2 7BJ
Tel: 01924 258719
Fax: 01924 257666
enquiries@hklegal.co.uk

London Office

28 Queen Street
London
EC4R 1BB
enquiries@hklegal.co.uk