An Investigation into the Legal Issues Relating to BIM in UK

 

ABSTRACT

The UK Government has mandated the use of fully collaborative 3 dimensional Building Information Modelling (BIM) Level 2, in all Government projects by 2016 in the UK, however, literature identified some legal issues regarding this, which might stifle BIM implementation including, design responsibility issues, Copyrights issues, ownership of the data issues, intellectual property rights issues, security of information issues, format for exchange of information issues and possible future use of information issues.  A research study has been carried out to examine the risen legal issues using two phases.  The first phase of data collection, was through an extensive literature review, data collected from recent UK based publications including books, Government publications, BIM seminars and BIM webinars, as well as, gathering data from documents published by the standards forms of contracts bodies on how to incorporate BIM into their existing contracts to cater for BIM maturity level 2. The second phase of data collection, carried out through conducting interviews with professionals in the UK construction industry. It has been found out the CIC BIM protocol and documents published by the standards forms of contracts bodies, have been rather successful to provide sufficient solutions to the risen legal issues.

Keyword: BIM, Legal issues, CIC BIM Protocol, Traditional forms of contracts, collaborative working.

Table of Contents

Abbreviations

3D              3-Dimensional

BEP           BIM Execution Plans

CAD          Computer Aided Design

CAM          Computer Aided Manufacture

CIC            Construction Industry Council

CD             Clash Detection

CDE           Common Data Environment

CDM          Construction Design Management

CPD           Central Procurement Directorate

DAC           Design Automated by Computer

ECC           Engineering and Construction Contract

ECS           Engineering and Construction Subcontract

IFC             Industrial Foundation Classes

IPR             Intellectual Property Right

JCT            Joint Contracts Tribunal

LOD            Level of Detail

M.E.P         Mechanical. Electrical. Plumbing

MPDT         Model Production and Delivery Table

NBS            National Building Specification

NEC            New Engineering and Construction Contract

PAS            Publicly Available Specification

PNG            Procurement Guidance Note

PPC            Public Procurement Contracts

PSC            Professional Service Contract

 

An Investigation into the legal issues related to BIM in UK

Synopsis:

NBS National Construction Contracts and Law Survey 2013

The survey carried out to study issues such as:

1.Procurement Routes.

2.Contracts, and how contracts are being used.

3.Legal issues encountered legal issues.

4. Disputes, nature of effects, and how participants resolve them.

The survey was carried on over 20 industry bodies, and over 1000 client, contractors, and consultants.

The purpose of the survey was to track changes in those areas, which will assist to predict how the industry will develop in the coming years.

The survey reveals that dispute remains an issue for the industry and it is still growing, with 30% of the participants have one or more disputes raised from a contract in the last 12 months, which is an increase by about 6% from previous year, 7% of the participants reported that they had been involved in three or more disputes.

The perception among participants in general, is that, the number of disputes are on the rise, with only 10% of participant disagreed with that.

Many of the surveyed disputes, involved large sum of money and have impacted severely on the construction process, half of the reported disputes, had value greater than £250,000, 13% had a value more than £5milion.

Overall, disputes arising from construction contracts appear to be on the rise according to NBS National Construction Contracts and Law Survey 2013, while at the same time, collaboration did not improve, with nearly half of the participant did not adopt any form of collaboration, although they were aware of its significance and agreed that, collaborative working would deliver client’s objectives better. Only 10% of the participants adopted collaborative working process in all their projects.

NBS National Construction Contracts and Law Survey 2015 finds that, disputes continue to blight construction industry

The study found out that, dispute is a real issue of everyday life in the construction industry, according to the 981 survey participants, value of final account and extension of time are the most common issues.

90% percent of the participants in this year thought that disputes has increased or remained at the same level.

Half of the participant stated that they dealt with at least one dispute in the last 12 months, most disputes occurred between clients and main contractors 76%, although suggestions made by Sir. Michael Latham in his famous report Constructing the Team, states that, If the construction industry is to become less adversarial, we must reexamine the construction process, particularly the relationship between contractor/subcontractor. (Latham,2014).

Collaboration has been improved in this year compared to the last survey, as 72% reported that, they have been involved in some collaborative working processes and 82% of the participants believed that working collaboratively has reduced disputes between contracting parties and in general collaboration has been improved when, the used contact was drafted to encourage mutual trust and incentivises all parties to work collaboratively.

Building Information Technology

Building information modeling (BIM) has been introduced to overcome many issues, one of them is to address the main issue of collaborative working, which is the clear definition of responsibilities, the report suggests that, the current used legal frames need to evolve, to contain and accommodate the changes BIM can bring.

Participants of the survey are members of more than 20 different industry bodies, who shared their experience in construction projects in the last 12 months, to provide overarching view of the construction industry.

Few such a research have been conducted previously, while the economic climate was different, however the result stated the same, the need for collaboration, the damaging effect of disputers and the adversarial nature of construction.

Legal issues in relation to BIM adoption in the UK

As part of the UK construction strategy, BIM level 2 mandate to all government projects in some parts of UK regions has raised some legal issues, which might stifle BIM implementation, including Model ownership, Integration of BIM into contractual arrangement, Design liability, as well as many additional issues, including Collaborative working and the Role of BIM coordinator. (Robert Eadie, Tim Mclernon and Adam Patton, 2015).

 

 

 

 

 

 

 

 

 

 

 

Origin of BIM

 

BIM is not new, the conceptual underpinning of BIM system started with the start of the concept of computer-aided design (CAD), which began in the 1950s and 1960s. The concept of BIM can be traced back to 1957 when Patrick J Hanratty, contributed to the CAD/CAM technology, when he developed a software for Pronto in 1961, he helped to develop the design of DAC (Design Automated by Computer), which was the first CAD/CAM system to interactive graphics.

At the same time, Ivan Sutherland in 1961, developed a CAD/CAM 3D system, Sketchpad “A Man-Machine Graphical Communication System”, on his Ph.D. thesis at Massachusetts Institute of Technology, the system allowed the designer to create components that can be stored, copied and              reused. Contrary to the most of problem solving systems used at that time, which required the designer to instruct the system step by step to solve a problem, the designer in Sketchpad system, can investigate ideas to solve a problem collaboratively with the system, that the designer does not know precisely what the problem is nor how to solve the problem.

BIM as known today, was suggested as early as 1962, by Douglas C Englebert, when he published a paper titled “Augmenting the Human Intellect”, that paper contained examples of how advancement can be achieved in the architectural design process by connecting the advancement of computing technology to support a new way of working.

Following that, in September 1974 Eastman, published a paper named, an outline of the Building Descriptive System, outlining the design of a computer system which can process design information at a detailed level, allowing design construction and operation analysis to be carried out, the system named Building Description System (BDS), the system supports, “easy graphic entering”, editing, printout, and sorting of data such as material type, and supplier. It is not until about the 1986 and on a paper by Robert Aish where the initial documented use of the “Building Modelling” was used in the same modem sense of the acronym BIM (Laiserin citing Aish, 2008).

 

 

 

The need for change

Sir Michael Latham report Constructing the Team 1994, which was commissioned by the UK government and the UK construction industry to review procurements and contractual arrangements, the report recommended radical changes to the construction industry, as previous reports produced to improve the construction industry, have either been applied incompletely, or the problem have continued. The report emphasised that, the implementation of the recommendations begins with both public sector and private sector clients, a check list of design responsibilities should be prepared, the use of coordinated project information should be a contractual requirement and the role and duties of project managers requires to be more clearly defined, the report led to the establishment of the Construction Industry Board and legislation on adjudication and fair payments, in addition to many other radical recommendations, to improve the way the industry does business and to combat the adversarial culture of the industry  .

The mission of the report was, to assist UK construction industry to become internationally competitive, and to improve the quality of UK construction industry and reduce its average cost by 30%, and to introduce continues improvement programmes.

Following the success of Latham report, another vital report (Rethinking Construction by Sir John Egan) was issued by Construction Task Force, the report focused on the scope for improving the quality and efficiency of UK construction industry as the industry needs to modernise, to tackle many issues, such as, its profitability is unreliably low to sustain healthy development. The construction industry needs not only to do what it does better, but it needs to implement a radical change in the way it builds, by inviting the UK construction industry, the government, and major clients to foresee the needed changes.

Egan’s report recommended that, there is plenty of scope for improving efficiency and quality, simply by construction. The processes to deliver projects, shall be explicit and transparent to the industry and its clients. The report also stated that, the industry should create an integrated project processes around four key areas, Product development, Project implementation, Partnering the supply chain, and Production of components.

In terms of tendering the report recommended that, the industry should replace competitive tendering with long term relationship such as partnering, as contracts can considerably add to the cost of projects, and often add no value to the client, which should be based on measurement of performance.

The report endorsed substantial change to the industry culture and structure, which is needed to enable improvement, and to deliver the culture changes which are important to improve the project process, the UK construction industry must start by valuing its people, as they are the most valuable asset.

The report emphasised the importance of regulatory controls in construction to enhance quality and efficiency, however the interpretation and application of the regulations is inconsistent across the UK, making it more difficult to implement a construction project speedily and efficiently.

The Government View on BIM

The Government Construction Strategy (GCS), report was issues in May 2011, the report emphasised the importance of an efficient construction industry to the UK economy, with output about 7% of UK GDP, and public sector client being the biggest                           customer to the industry by spending total of 40%.

The report calls for profound change to the relationship between public authorities and the construction industry, to ensure that public authorities get a good deal and the country gets the social and economic infrastructure required.

The government released a detailed programme of measurements to reduce the costs by 20% by the end of 2011 parliament, the government announced that there is a need for change, as recent studies highlighted, key barriers to growth, such as, the construction sector under-performs in terms of capacity to deliver value in addition to lack of investment in construction efficiency and growth opportunities, poor and inconsistent procurement practices, predominantly in the public sector led to inefficiencies and waste.

One of the key strategic objectives of this report is the mandate of full collaborative 3D BIM (with all project and asset information, documentation and data being electronic) across government projects by 2016.

Cabinet Office, 2011 Government Construction Strategy

What is BIM?

There are several definitions of what BIM is, and in many ways, it depends on your point of view or what you seek to gain from the approach.

http://www.bimtaskgroup.org/bim-faqs/

BIM is not only a tool or a change of work technology, as all other technologies are recently developed technologically, BIM is a process which changes the way we design, build and maintain our buildings fundamentally by indicating the key physical and functional appearances of a building on a computerised prototypical form.

BIM is similarly, an acronym for Building Information Modelling. BIM describes how everyone can understand a building using a digital model which draws on a range of data assembled collaboratively, before, during, and after construction. Creating a digital Building Information Model enables those who interact with the building to optimize their actions, resulting in a greater whole life value for the asset.

https://www.thenbs.com/knowledge/what-is-building-information-modelling-bim

UK Government Definition of BIM

Building Information Modelling (BIM) is a collaborative way of working, underpinned by the digital technologies which unlock more efficient methods of designing, creating, and maintaining our assets.   BIM embeds key product and asset data and a 3-dimensional computer model that can be used for effective management of information throughout a project lifecycle – from earliest concept through to operation.

HM Government 2011

Levels of BIM

 

BIM is rapidly developing field, and there is no final definition yet of what BIM is or what it may develop to. Despite the debate of the definition of BIM, the industry has categorised BIM under various levels, the movement from level to more efficient level of BIM referred as “BIM maturity”.

Level 0

This level refers to unmanaged Computer Aided Design (CAD) in 2D drawings formed, primarily using lines, arcs, and texts, with output printed on papers, or on electronic data exchange forms, or mixture of both, this level is not a BIM as it known now, and there is no collaboration on it, it depends on 2D CAD system to design and to produce information.

Most of the UK construction firms, are well ahead over level 0.

(NBS National BIM Report 2014)

 

 

 

 

Level 1

This level mark the first step to genuine BIM and the use of 3D CAD for concept work in the design process, and 2D for the preparation of drawings for statutory approvals. The originator is usually operating in isolation, the collaboration among the originators happens when information exchange is needed in a central place named Common Data Environment (CDE), which normally complies with BS 1192:2007 (BSI, 2007), that set the code of practice for the collaborative production of architectural, engineering and construction information in the UK.

Level 2

This level is a managed 3D format, models are developed and  held with the originators in a separate 3D BIM software, the collaboration comes on how the information can be exchanged between different parties, a significant characteristics of UK BIM Level 2, is the use of an ‘as – built data drop’ for the employer under a construction contract or professional service contract, the formalisation of this step established the need for agreed standards protocols and principles by which information can be created, shared, and exchanged.

Level 3

This level is also known as ‘Open BIM’, will be performance based, fully integrated and collaborative real-time project model, which would be enabled by web or cloud facilities. This level would solve interoperability issues as involved disciplines will work collaboratively in single model, which would result in fewer clashes, and less legal obstacles. This level of BIM will utilise 4D,5D and 6D dimensions and will be led by the development of standard libraries of objects.

(NBS National BIM Report 2014)

Design Liability and Ownership

What is design

Designs have been traditionally based on drawings and specifications, however when BIM is used as a tool for design, designers will face fundamental challenge to the way they approach design, because “with BIM, buildings are modeled rather than drawn”, (Comiskey, David, Tzortzopoulos, Patricia and Winnington, Mark (2014), citing levy 2012). The design process need to be more fluid and collaborative. Certain elements of the design, such as objects will be produced by other designers, various design team members may add to the model to produce flexible and fluid final design, the complete or partially complete design may store in cloud server, rather than the traditional methods, which bring certain challenges to the project parties.

In 2011 the UK government required fully collaborative 3D BIM approach to be adopted in all public funded projects, as a minimum by 2016 (Government Construction Strategy, May 2011). When BIM is adopted in a project and the adoption of BIM spreads further in the supply chain, the identity of the designer is not clear, in all cases there will be a party responsible for the design concept, who will maintain responsibility, however there will be other designers who will add to that design. All designers will now be ought to work together in collaborative way, that may arise many issues such as:

• Does the use of BIM changes the traditional provision of duties, between the client, designers, contractors and the suppliers?

• Do the standards committees that develop interoperability protocols and object specifications also become project designer?
• For how long designers would be liable for their designs?
• How traditional forms of appointments and contracts, can be amended to incorporate BIM?
• Is there any need for new forms of BIM contracts?
• Does the party managing the model undertake further accountabilities and risk?

The Designer’s Liability

In BIM level 2 working environment data and information are prepared and shared in 3-dimensional format and each 3D BIM model originator create and maintain their own model. The Government Construction Client Group (GCCG) stated that, the use of BIM level 2 does not necessitate huge change to the traditional forms of contract such as NEC3 and JCT, and it does not alter the provisions of tasks between the contracted parties, however, little change is needed in the copyright law, contracts, and insurance to facilitate working at Level 2 of BIM maturity, and simple new standard protocols and services schedules are needed to outline BIM-explicit roles, method of working and anticipated projects outputs.

Peter Barnes and Nigel Davies (2015) suggest that, in working with a collaborative BIM model many parties contribute to the to the design, however the use of BIM in the UK BIM level 2 setting, does not change the traditional provision of responsibility between the project party. In PAS 1192:2:2013 (BIM Task Group, 2013), advises that the lead designer shall be responsible for the harmonised delivery of the design information. The primary role of BIM level 2 information manager is, the management of information processes and compliance with agreed procedures and protocols in the common data environment (CDE).

Information Ownership

A dynamic BIM model raises issues around ownership, BIM model is vastly valuable but can be fragile, computer software is prone to power disruptions, viruses and physical damage.

An important element interlaced throughout the strategy vision of transformation to an optimised BIM model is the ability of all parties to communicate and collaborate freely. Current practices for silence for fear of liability must be eliminated.

(Peter Barnes and Nigel Davies, 2015).

Peter Barnes and Nigel Davies, 2015, stated that ownership of the BIM model is likely to be retained by the owner of the building, however ownership of the data which make that model itself, is a separate issue, information contained within a BIM model is highly likely to be contributions of different participants, for example, design data, cost data, graphical information, tables, and databases. Different legal findings may govern each of these rights. With regards to BIM intellectual property issues, they are like what existed traditionally before BIM, however, they are much augmented by the amount of data contained in the BIM model, as BIM model is a collaborative work, ownership of the data may not be vested in a single party, if ownership issues are significant, they should be determined by contract. Arensman and Ozbek (2012) state that, on the question of who would own the model after completion of the project, the owner will want the BIM model, as they will need it to have a prototype of the final project and use it to manage the facility, the architect by law and custom, has intellectual rights to their BIM model, as it was their creation. According to Larson and Golden, lawyers with M.A. Mortenson, the legal principle is clear: ‘‘Absent contract language to the contrary, the party that creates the model owns it’’ (Larson& Golden, 2008, p. 22). The study further highlighted that, typical BIM project will involve contributions from various parties, (Larson &Golden, 2008) suggest that, each of those information originators will want to ensure they own the model they contributed to. One apprehension each information originator can possibly have about the ownership is the repurposing of the BIM model and its data, by using the BIM model and its data for other projects or in ways not licensed by the owner of the intellectual property. On the ownership of the BIM model issue and who is responsible of the data in the BIM model, (Owen, 2012) highlighted that, as a consultant taking from a project inception and depending on the procurement route, ownership and responsibility of the BIM model develops and changes, as the BIM model evolves and changes from conceptional stages to scheme stages, for example on design and build contracts, ownership and responsibility of the BIM model takes over to the Contractor rather than the actual design consultant, which is an evolution of the design process similar to what happen in normal contractual routes.

 

 

 

 

The effect of BIM on traditional forms of Contracts

Peter Barnes and Nigel Davies (2015), stated that, in the current used contracts, at BIM level 1, there are few issues in the contracts, as the BIM tools are commonly internal to members, this does not raise any need to alterations to the existing contract document, however, consideration should be taken to amend the existing forms of contracts, once BIM maturity level 2 is reached. Koko Udom (2012) stated that, because of the fundamental level of change that, comprehensive implementation of BIM Level 3 in the UK BIM maturity will bring at all levels, it is better to draft new forms of contracts.

The BIM Protocol

In February 2013, the Construction Industry Council (CIC) with the technical assistance and guidance provided by BIM Task Group, has issued the first edition of Building Information Model (BIM) Protocol, as part of its response to the UK Government BIM Strategy to improve traditional forms of appointments and contracts to include BIM at Level 2. The protocol identifies the required models to be produced by project team members, the protocol implies specific obligations, liabilities and associated limitations on the use of the models. BIM Protocol is drafted to maximise production efficiency and to define standards and best practices that ensure delivery of reliable quality data.

Legally, one of the BIM Protocol general principles is that, the Protocol drafted to be a contractual document, clause 2.1 of the BIM Protocol states: In event of conflict or inconsistency between the terms the CIC BIM Protocol and any other documents contained in and/or forming part of the contract, excluding cases where the CIC BIM Protocol states otherwise, the terms of CIC BIM Protocol shall prevail., this clear statement makes the BIM Protocol to take superiority over existing agreements. Every party involved in any use, or creation of the BIM models for a specific project, must have the same version of BIM Protocol appended to their contract, and every BIM project must have its specific BIM Protocol, this is due to the unique nature of construction projects. (Building information Model (BIM) Protocol, 2013)

 

Amendment of Traditional Forms of Contracts

Public Procurement Contracts

CIC BIM Protocol has been issued to accompany Public Procurement Contracts (PPC2000), in response to the recommendations by the Government clients group, and the acceptance by the Government in May 2011 Construction Strategy.

The supplement contains set of an acceptable alternatives to incorporate CIC BIM Protocol into PPC2000 contracts so that (if so agreed):

• The lead designer of consultant service is to take the role of BIM-Coordinator
• The partnering time table and project time table (and any amendment to clause 8.3 and 8.6 in the project partnering agreement) incorporate all the inputs, timings and responsibilities that are contained in the BIM Protocol.
• 3D BIM model is to be included as part of the project proposal.

In addition, to many amendments that should be considered to the published forms of PPC2000, when the Project Partnering agreement is being filled out, to recognise the incorporation of BIM Protocol, BIM Protocol appendices and BIM-Coordinator as Partnering Documents. Refer to the appendices for the required amendments.  (PPC2000 (Amendment 2008) Building Information Modelling (BIM) Supplement)

How to Use BIM with NEC3 Contracts

Dr Martin Barnes CBE, the originator of the NEC contracts stated that ‘the NEC does include specific provisions of for dispute avoidance. They are not necessary. Collaborative management itself is designed to avoid dispute and it really works.’.

In April 2013, the nec^© 3 published a document on how to use BIM with NEC3 Contracts, to help contract compilers to incorporate BIM into NEC3, particularly in the main forms of NEC3 contracts, the document included a detailed guidance on how to use CIC BIM Protocol with NEC3.

The NEC 3 Contracts which are likely to be used in BIM Projects are:

• NEC3 Engineering and Construction Contract (ECC).
• NEC3 Engineering and Construction Subcontract (ECS).
• NEC3 Professional Service Contract (PSC).

The short versions of these contracts will not normally be suitable for the use in BIM Projects due to the additional risks and complexities that producing the BIM model adds to the process. Parties appointed in BIM project using short forms of these contracts may be required to provide their service in digital format, such requirements will be covered by provisions in the Work Information for ECC and ECS Contracts or Scope for PSC contracts.

NEC3 with CIC BIM Protocol

Each NEC3 Main contract form provide additional clauses which are likely to be used for preparing parts of the BIM model, those clauses should be stated as additional conditions of contract under option Z of respective contract, short forms of contracts should follow similar provisions to the main contracts. On the clauses where the CIC BIM Protocol modify the condition of NEC3 contracts or include information that form part of Work Information or Scope on (ECC) and (PSC) respectively, they need to be properly incorporated into the documents in order that, amendments can be instructed. The instruction then treated as compensation events. Definitions included in the BIM Protocol apply to the provision of the protocol only, and care should be taken where they may conflict with any definition stated in the Work Information or Scope. The CIC BIM Protocol stated in clause 2.1 that terms of protocol take priority over any other document, if the Project Manager or the Employer needed to issue an instruction to change the Work Information or Scope if it contains of any contradictory provisions. That instruction would be a compensation event.

Additional conditions, Work Information, Scope and Compensation events imposed by CIC BIM Protocol to NEC3 (ECC, ECS and PSC) Contracts, are showed in the following tables:

ECC additional clause

CIC BIM Protocol

1	In this clause, the Protocol is the CIC Building Information Modelling Protocol, first edition 2013.Terms used in this clause are those defined in the Protocol.
2	Clauses 1,2,5,6,7. Of the Protocol are additional conditions of contract. Clauses 3 and 4 and Appendices 1 and 2 of the protocol are Works Information.
3	The following are compensation events.