BIM law and regulation in the Netherlands

The use of BIM is increasing in the Netherlands. It is both public and private sector driven. It is already frequently used by major players in the construction sector, such as infra managers (e.g. ProRail), the Directorate-General for Public Works and Water Management (Rijkswaterstaat) and the Central Government Real Estate Agency (Rijksvastgoedbedrijf). Also other Employers and companies in the construction sector are using BIM more often.

This development presents a great opportunity for Employers to gain maximum value and for Contractors to work as efficiently as possible.

However, the adoption of BIM is not a legal requirement in the Netherlands and there are no government mandates for its use.

The contractual requirements to deal with BIM depend on the task within the construction project and the type of contract. In general the following topics are relevant:

• description of the project (e.g. names of the project and parties, type of contract and applicable conditions like the Uniform Administrative Conditions for the Execution of Works (UAC));
• collaboration agreements (e.g. about the transfer of information, which data to deliver/merge, the hardware and software requirements, the roles and responsibilities of the parties and the hierarchy of contractual documents and the information carriers);
• agreements on model (e.g. structure of aspect models, the type of analyses and modelling agreements); and
• legal aspects (e.g. the intellectual and related property rights and liability).

There are several Protocols and standards that provide guidance on how to deal with BIM in contracts.

The current model contracts, based on either the UAC or – for integrated contracts – the UAC-IC (Uniform Administrative Conditions for Integrated Contracts), can be used when working with BIM, according to the Building Information Council (Bouw Informatie Raad).

For contracts with Consultants, Engineers and Architects the current model contract based on the TNR (“The New Rules”, concerning the legal relationship between client – Architect, Engineer and Consultant) can be used for working with BIM.

Because BIM is not defined yet in those model contracts and standard conditions (and these contracts/conditions will probably not be changed in the near future), proper arrangements should be made on the application of the building process and BIM in addition to those contracts by the contracting parties themselves.

Furthermore, please note that the Standard Job Description (Standaard Taakbeschrijving), which is used as a tool for the TNR model contract, does not sufficiently connect with BIM processes and responsibilities.

There are currently only very limited (if any) BIM specific guidelines published by professional bodies. However, the Building Information Council (Bouw Informatie Raad), together with professional bodies from all relevant industry branches, established the “BIM desk” (BIM loket) which encourages and coordinates the use of BIM, functions as a helpdesk for BIM users and administers/manages the BIM standards.

There is no statutory BIM Protocol in the Netherlands. Parties are free to choose any BIM Protocol as guidance for the BIM team (i.e. the Employer/contracting authority and the contracting parties). There is great diversity in BIM protocols that are being used by the market. The different protocols all have different content and different terminology. To provide unambiguity, the Building Information Council/BIM desk recently published the “Nationaal Model BIM Protocol” (national model BIM Protocol) and the “Nationaal Model BIM Uitvoeringsplan” (national model BIM implementation plan). The model BIM Protocol is meant as a structure for project specific contract provisions concerning BIM. The model BIM implementation plan is a template which can be used by project teams to lay down their BIM working arrangements. The models use unambiguous terminology, which is in line with the developments in surrounding countries and the expected future European BIM standardization.

The models are published in a 0.9 version for consultation. The BIM desk intends to publish a 1.0 version by the end of 2017.

The BIM Protocol will be attached to the contract, which makes it binding on all the contracting parties. The BIM Protocol sits in the hierarchy of the contractual documents as agreed between those contracting parties.

The role of the BIM Manager/Information Manager (and any other role with regard to BIM) can be assigned to anyone. Usually the Employer appoints a BIM Manager from its own organisation, one of the other contracting parties or an external BIM consultant.

A CAR (Construction All Risks) insurance provides a so-called umbrella coverage for all the stakeholders related to the construction. The insurance covers all damage to the construction and can also cover liability of all contracting parties/stakeholders. However, a CAR-insurance only comes into play when there is physical damage to the works and is therefore not sufficient in all cases.

A professional indemnity insurance on design and construct can provide coverage for the liability of all parties for faults with regards to BIM.

In addition, parties could choose to have corporate liability insurance, building design insurance, hidden defects insurance, but also insurance related to work materials, soil remediation, warranties and installations.

In general, there is no need for concern. If parties use the model contracts and standard conditions as mentioned in the answer to FAQ. 3, the liability is the same as in other contracts under these conditions (i.e. no design liability for the Contractor when using UAC and a fit for purpose obligation for the Contractor when using UAC-IC).

However, because these models/standards are not drafted for the use of BIM this may leave a gap when using BIM. To avoid any uncertainty, we advise contracting parties to make additional agreements about liability for the design when using BIM.

It is likely that BIM will affect the allocation of intellectual property rights created in a BIM-project.

A work could be made by a Contractor according to the design by and under the direction and supervision of the Architect. If this is the case, the copyright remains with the Architect (article 6 Dutch Copyright Act).

However, it is also possible that the design, after having obtained consent from the Architect, is further developed by a Contractor, without direction and/or supervision of the Architect. The modifications made by the Contractor in this case have to be regarded as an adaptation of the design of the Architect (article 13 Dutch Copyright Act).

If these modifications, engineered by the Contractor, lead to a new and original work, this design might be protected by a copyright of the Architect (to the previous design) and a copyright of the Contractor to its (original) modifications.

Another scenario is possible when all Contractors/parties in a BIM project work simultaneously on the creation of a joint BIM design. If the contributions of each party can be distinguished, the parties are all copyright owner of their own contribution. If the contributions cannot be distinguished, the parties have a joint copyright in one and the same work (article 26 Dutch Copyright Act).

Under Dutch law, data does not constitute “property” because of the lack of materiality (Article 3:2 Dutch Civil Code). As such, ownership of data is therefore not possible. It is however possible to own intellectual property rights related to the data (e.g. copyright, database right).

We advise to make contractual arrangements with all BIM parties regarding the use of data in BIM.

The data required depends on the type of contract, the contracting parties and which BIM-construction stage the parties are in (preparation stage, design stage, realisation stage, exploitation stage, management stage and demolition & recycle stage). E.g. in the preparation stage, a contracting authority/Employer should ask contracting parties for information about communication, the planning and costs, which standards are going to be used and what data is going to be provided and in the design stage, information about the models, the measurements and proportions, the dimensions, the construction materials and other relevant data relating to the development of the models should be provided.

Please note that it is not only relevant what data must be provided, but also in what file format. We advise to make contractual arrangements with all BIM parties regarding the use of the same file format in BIM.

The position regarding warranties and/or indemnities is not different in a BIM project, unless agreed otherwise by the contracting parties.

In general, BIM will have a positive impact on planning and length of time. With the use of BIM, the contracting parties involved are able to perform their work at the same time. BIM prevents, or at least reduces, any delay in the design, construct and exploitation stage by providing all parties concerned with the same information. By visualising and linking all the information, complications are easily recognisable for all parties and the consequences of those complications can be detected in an early stage.

If agreed, the building owner and facility manager can utilise the data within the model during the occupation stage and after the occupation of the building. For example, a building owner may find evidence of a technical fault in the climate system. Rather than exploring the physical building, he may turn to the BIM model and see that a pump is located in a suspect location. In the BIM model, he may also find the specific pump size, manufacturer, part number and any other information ever researched in the past. It therefore creates benefits for the ongoing operation and maintenance of the building throughout its life.

The latest news and additional information about the use of BIM in the Netherlands can be found on the Building Information Council website (Bouw Informatie Raad): http://www.bouwinformatieraad.nl/.

And also:

• https://www.rijksvastgoedbedrijf.nl/expertise-en-diensten/b/building-information-modelling
• http://bimloket.nl/

We expect an increase of the use of BIM in the Netherlands in the upcoming years.

The Central Government Real Estate Agency (Rijksvastgoedbedrijf) and Directorate-General for Public Works and Water Management (Rijkswaterstaat) already use BIM for all their DBFM(O) contracts and are planning to expand the use of BIM to other contracts as well.

We expect other (public sector) employers to follow this example and BIM to be an increasing factor in terms of competitiveness in the market.

A new development is the use of BIM in combination with the latest technology, such as Virtual Reality and holograms.

However, it all depends on the market players, since at the moment the Dutch government does not have any plans to prescribe the use of BIM in construction projects.