BIM law and regulation in Germany

Currently, the use of BIM is not mandatory in Germany.

However, the Federal Ministry of Transport and Digital Infrastructure (FMTDI) has developed – in coordination with the private industry – an action plan with the objective to implement and disseminate BIM in Germany. The action plan shall introduce BIM in three steps:

• Phase one is a preparatory phase until 2017 covering, inter alia, the setting of standards and the resolution of legal issues;
• Phase two is a pilot phase lasting until 2020. On the basis of selected infrastructure projects, experiences in the practical usage of BIM shall be collected.; and,
• With the start of phase three, BIM will be applied to all new (infrastructure) projects of the FMTDI from 2020 onwards.

Hence, the implementation of BIM is mainly driven by the public (infrastructure) sector.

By generating experience in the application of BIM and developing legal and technical standards, the action plans pursue the goal that BIM will be increasingly adopted by the private sector.

According to a recent survey of the Fraunhofer IAO in 2015, BIM is used currently in large-scale projects (above EUR 25m) by about one third of the planners and building Contractors. However, especially in smaller planning offices, BIM is currently not widely used in Germany.

Furthermore, since April 2016 public awarding authorities are entitled to request from the Contractor the use of BIM for the planning and construction process in Germany (see Sec. 12 (2) sentence 1 of the Regulation on Public Procurement (“Vergabeverordnung, VgV”). The same applies to the procurement in the areas of transport, drinking water and energy (see Sec. 12 (2) “Verordnung über die Vergabe von öffentlichen Aufträgen im Bereich des Verkehrs, der Trinkwasserversorgung und der Energieversorgung – Sektorenverordnung, SektVO)”). However, the public awarding authorities are not obliged to exercise this right.

The decisive question is the arrangement of the contractual concept to be applied for the project. In general, two models have emerged:

• all relevant participants of the project signing one multi-party agreement followed by a fully integrated programme of key dates for development and implementation of design contributions of the parties (“Mehrparteienvereinbarung”); or
• a (standard) single planner agreement – as is the case in non-BIM projects – which, is linked with technical and legal BIM conditions laid down in several annexes (“vernetzte Standardeinzelverträge”).

The main structure of the (integrated) single contract concept in many cases applies the following structure:

The planner contracts provide that all of the respective participants of the planning and construction process have to consider BIM specific contractual addendums. Depending on the project, the following extensions may be considered, inter alia:

• BIM specific legal conditions (“BIM-Besondere Vertragsbedingungen - BIM-BVB”);
• The Principal-Information-Requirements (”Auftraggeber-Informations-Anforderungen - AIA”);
• the BIM specifications (“BIM-Pflichtenheft”); and,
• the BIM execution plan (“BIM-Abwicklungsplan – BIM BAP”).

The BIM-BVB contain uniform legal terms for all participants, e.g. in regard to the description of the BIM specific performance services, intellectual property rights (especially the grant of use rights), data protection, insurance, confidentiality duties or the definition of the different areas of responsibility of the parties involved in the planning process. The conditions laid down in the BIM-BVB constitute mandatory legal requirements for all single planner contracts. This concept, using uniform additional BIM conditions which are mandatory for all single contracts, can be found also in an international context, for example in the Consensus DOCS 301 BIM Addendum (US).

The AIA lay down, inter alia, the objectives for use of BIM, what data the principal requires for the project, in what level of detail the data has to be provided and which data format is to be used (see also FAQ 5).

The BIM-Pflichtenheft also addresses coordination and technical requirements and may be tied up to the AIA.

The BIM-BAP defines, especially, the interfaces and roles of the different participants in the planning process. In general, the BIM-BAP will be developed on the base of the AIA. The BIM-BAP will be updated during the entire planning process. In an international context the fundamental structure of the BIM-BAP is comparable to the BIM Project Execution Planning Guide of the CIC Research Group 2010 (UK).

Contractors are obliged to ensure that the sub-contracts contain obligations requiring compliance with these vital documents in the BIM process.

The contractual structure and distribution described above is not prescribed by law. The drafting of these additional contractual documents is subject to considerations of expediency, the particular BIM Model to be used in the project and the extent of information to be processed.

However, as a basic rule we recommend that legal issues should be included in the BIM-BVB and requirements regarding the process of BIM, the exchange of information and technical aspects should be governed by the BIM-BAP.

Currently, there are no BIM specific standard terms for planning and construction contracts in Germany comparable to the model contract used in the international context, as for example the contractual terms developed by the Joint Contract Tribunal (JCT) and the Complex Projects Contract 2013 (CPC 2013) in the UK, or the Consensus DOCS 301 BIM Addendum from ConsensusDocs and the American Institute of Architects (US).

However, with the help of the experiences gained during phase 1 and phase 2 of the action plan of the FMTDI (see FAQ 1) legal and technical standards will be elaborated for the drafting of the BIM amendments.

We expect, for example, that with regard to the BIM-BVB standard terms, the issue of copyright, the distribution of liability risks and a checklist for handover of the data to the principal will be developed. Also guidelines and model examples for the drafting of the BIM-BAP will be worked out.

In Germany, there are currently few, if any, BIM specific guidelines published by professional bodies. However, it is expected that this situation will change.

The association “Panen-bauen 4.0 – Gesellschaft zur Digitalisierung des Planen, Bauens und Betreibens mbH” acts as a BIM Task Group and will initiate projects for research and standardisation. It was founded in January 2015. Shareholders are leading associations of the building sector, inter alia, private interest groups, the Federal German Chamber of Architects (“Bundesarchitektenkammer”) and the Federal Chamber of Engineers (“Bundesingenieurkammer”).

The association of German Engineers (“Verein Deutscher Ingenieure (VDI)”) is developing guidelines (“Richtlinienreihe VDI 2552”) including, but not limited to, technical aspects with regard to the use of BIM. The requirements set up by these guidelines will be recognised as state of the art technology (“Stand der Technik”) in Germany.

The VDI task groups will also address questions about liability, copyrights etc. together with the role and the coordination of the participants in a BIM project.

Furthermore, regional chambers of Architects have begun to develop guidelines and model contracts for BIM projects.

CMS is in close collaboration with the key bodies dealing with BIM and is involved in the support and development of BIM in Germany.

The term “BIM-Protocol” is not used uniformly in Germany. Furthermore, the particularities of the contractual BIM Protocol may vary from project to project.

The BIM Protocol sometimes contains typical legal elements of the German BIM-BVB (see FAQ 3). In Germany, the meaning of the BIM Protocol is largely comparable to the BIM-BAP. Both the BIM Protocol and the BIM-BAP derive from the special characteristic of BIM – the necessary coordination of the exchange of contributions and information from the different participants. They answer the question “who delivers what, when, how and for what”. Therefore, they provide for, inter alia:

• the way the information between the participants will be exchanged and what information shall be disclosed (i.e. whether the 3D model will be exchanged; time schedule for the exchange of the BIM-model);
• who coordinates the BIM model;
• the level of detail (LOD) and which data format is required (e.g. geometry and part attribute references (“Bauteilattribute”)); and,
• what information has to be provided to the BIM management and the administration.

In Germany, there is no hierarchy in a formal sense. The contractual documents differ in regard to their content and, to some extent, to the timing of their preparation.

The following contractual documents may be particularly noted in Germany when applying the concept using (integrated) single contracts (see FAQ 3 for the detail concerning the contractual documents):

• (standard) Architectural/Engineering contracts
• BIM-BVB
• AIA
• BIM-Pflichtenheft
• BIM-BAP

The BIM-BAP is the central document in defining the collaborative information sharing of the participants, as well as the technical requirements (see FAQ 2 and 5). It specifies the coordination and technical requirements set up by the AIA and/or BIM-Pflichtenheft taking account of the concrete progress of the project. Consequently, with regard to the BIM-BAP in most cases there is at least a “temporal hierarchy” as the BIM-BAP may lead up to the AIA/BIM-Pflichtenheft. In contrast to the BIM-BAP, the BIM-BVB addresses legal aspects.

In Germany’s experience, in most projects the Project Manager (“Projektsteuerer”) acts as BIM Manager and the object planner/Architect acts as coordinator.

The following list provides a general overview on the potential participants for the role of the BIM Manager in Germany:

• Project manager: As the main task of the BIM Manager is of a coordinative nature, it is quite practical that the project manager (“Projektsteuerer”) is also responsible for the BIM management.
• General/Object planner/Architect: In many cases, the BIM management can be served solely by the general planner (Architect) (“Objekt-/Generalplaner/Architekt”) when the general planner possesses sufficient BIM know-how.
• Building Contractor: The building Contractor (“Bauunternehmer”) is involved in BIM management, especially in the event that the focus of the usage of BIM lies in the execution planning.
• Principal: As far as the principal (“Auftraggeber”) possesses expertise in BIM, the BIM management can also be serviced internally by the principal.
• External BIM-Manager: The management of BIM can be served by an external stand-alone BIM-Manager. This could be useful, particularly if the BIM know-how of the participants stated above is limited.

In general, there are no necessary changes in regard to the insurance regime. The liability principles of the participants of the project do not change due to the usage of BIM as a planning method (see FAQ 9). There are no material changes to the risk profile provided there is a precise definition of the different areas of responsibility of the parties.

Therefore, the requirement for ordinary professional liability insurance (“Berufshaftpflichtversicherungen”) and construction insurance policies (“Bauwesensversicherung”) applies as before.

In general, BIM planning services are covered by the professional liability insurance. However, in the event that the planner renders new services going beyond ordinary planning services which might not be covered by such insurances, we would recommend consulting an insurance specialist before signing the contract.

The insurance market in Germany has developed special project insurances (“Projektversicherungen”) for the entire project, especially in the context of BIM. These project insurances were not common in Germany up until now. The advantage of such insurance is that it is not necessary to determine which participant was responsible for the planning and design mistakes or errors. The costs of the insurance will be spread amongst the participants.

In general, using BIM does not extend the liability for design and planning mistakes or for defects due to design errors. Each planner is liable for its own fault even if BIM underlies a strong collaborative approach. The parties maintain their own roles and responsibilities.

However, the use of BIM requires a very precise description of the design services to be rendered and a precise differentiation of the extended interfaces and coordination between the participants. If contractual obligations are not described sufficiently there is a higher risk for the planner to be liable for the contractually agreed use of the project.

An extra liability due to the implementation of BIM services is possible in exceptional cases, e.g. in the event that special partnering-models will be implemented or if the planner breaches his own duty to integrate and coordinate planning services (which has already constituted a liability of the planner).

In Germany, a distinction should be made between ownership rights, copyright and know-how protection.

According to the prevailing view, German law does not allow for the creation of ownership rights (“Eigentumsrechte”) in data, inter alia, in the building model (“Gebäudemodell”).

However, under certain circumstances the digital 3D building model is protected by the German copyright law against, inter alia, an illegal reproduction or distribution. In order to be subjected to the German copyright law, the building model has to constitute a personal intellectual creation (“geistige Schöpfung”) which goes beyond an ordinary work and reaches a certain degree of individuality (“gewissse Schöpfungshöhe”) (see Sec. 2 (2) German Act on Copyright and Related Rights (“Copyright Act - UrhG”)).

Therefore, we recommend specifying in the contract, inter alia, the exploitation rights and the right of use (“Verwertungs- und Nutzungsrechte”) of the building model (see also Sec. 16, 31 UrhG).

If multiple planners have jointly created the BIM Model without it being possible to separately exploit their individual shares in the work, they are considered to be joint authors of the work (Sec. 8 UrhG).

Virtual building models can be theoretically protected as database work (“Datenbankwerkschutz”) (see Sec. 4 (2) UrhG). With regard to the protection of the database work, it is also required that the work constitutes an act of an individual intellectual creation (“persönlich-geistiger Schöpfungsakt”). In particular, this is the case when the data or elements in the database are systemically and methodically arranged. However, in general, the BIM-Manager will only collect data from the predefined participants without making a selection decision. Further, it is argued that the building model is not protected as database work since the model constitutes a coherent work and does not consist of independent elements, which is required for the protection as database work.

With regard to the latter argument, it is also disputed in Germany, whether the producer of the BIM database, e.g. the principal or the BIM Manager, is protected by German copyright law (see Sec. 87a UrhG). In accordance with this provision, the producer of the database has, inter alia, the exclusive right to reproduce and distribute the database as a whole or a qualitatively or quantitatively substantial part of it. However, also under Sec. 87a UrhG it is required that the elements of the database have to be independent and that the database does not constitute a coherent work.

As not all BIM services are protected by the German copyright law, in addition we recommend safeguarding the building model with effective know-how protection measures, since every participant has access to the project information every time he is logged in to the software. Useful instruments would include the use of effectively drafted Non-Disclosure Agreements (NDAs) and defining the rules of access to the model (“Zugriffsrechte”) in an agreement (as recommend by the FMTDI in its action plan).

The data required depends on the project and will in general be laid down in the AIA, especially the BIM-BAP (reference is made to FAQ 2).

As BIM, in general, does not affect the liability regime (see FAQ 9) no changes are to be expected to common clauses.

In this respect it is worth noting that the Contractor has an additional obligation to provide a consistent 3D building model.

It is expected that BIM will reduce the planning and construction time, e.g. due to the fact that fewer errors and corrections are necessary during the construction phase (especially by the automatic clash detection) and due to the enhanced quality control and design coordination. There are several international studies examining the benefits of BIM which can be referred to. For example, a study by the Stanford University Center for Integrated Facilities Engineering (CIFE) on 32 major projects using BIM noted up to a 7 percent reduction in project time.

However, especially for Germany a reduction of the planning time is to be expected due to the change from a sequential planning process, which is applied until now in Germany, to an integrated approach which is required by the use of BIM.

Furthermore, the precise recognition of the time data in the BIM model (4D) in real time may facilitate the project being finished in time.

In Germany there is the expectation that BIM will be of great benefit for the occupation of buildings. BIM can potentially facilitate the target-performance comparison of the project (“Soll-Ist-Vergleich”) since BIM contains comprehensive and crucial data about several aspects of the building, e.g. room data, technical documentation, costs, selling data and administration guidelines. Furthermore, the BIM-system ensures that during the handover of the building no data is lost.

BIM affects not only the planning and construction phase; the model’s information is relevant to the entire life span of a property, including the building’s operation and maintenance after it has been completed and handed over.

BIM is, thus, not only substantially significant to the construction industry, but also to the real estate sector especially due to its information consistency.

The website of the FMTDI provides information about the implementation of BIM:

http://www.bmvi.de/DE/DigitalesUndRaumentwicklung/DigitaleAgenda/DigitalesBauen/digitales-bauen_node.html

We also recommend the following resources:

• BIM Guideline (“BIM Leitfaden”) developed on behalf of the Bundesinstitut für Bau-, Stadt und Raumforschung (BBSR) 2013. The guidelines define terms, provide an overview about the state of play of the implementation of BIM in Germany and abroad, answer questions about data exchange and organisation of BIM based cooperation.

The guidelines are only a recommendation. See:

• http://www.bbsr.bund.de/
• http://www.bimid.de/projekt-bimid (demonstration of the BIM-method with help of concrete building projects supported by the IFMD, German)
• http://planen-bauen40.de/blog/

As described under FAQ 1, performance Level 1 (“Leistungsniveau 1”) in the implementation of BIM shall not be reached until 2020 when the FMTDI’s action plan is completed. With regard to the content of the action plan (three phases), reference is made to FAQ 1.

There are also general plans for targeting performance Level 2 after the implementation of performance Level 1 is finished. However, no concrete steps have been taken in that regard at the moment.

Nevertheless, as our close collaboration with bodies involved in the development of BIM, the development of legal advice on BIM projects and our monitoring of the different branches evolves, we expect that the implementation and development of BIM in Germany will speed up considerably in the short term.