This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
BIM is the one of the most recent and most exciting developments within the construction industry. Sarah Rock looks at what it is and whether existing contractual documentation fully covers the changes that BIM will bring to a construction project.
What is BIM?
Building Information Modelling (BIM) is an advancement in technology from traditional 2D and 3D Computer Aided Design (CAD). BIM allows for 3D modelling of a construction project with a layer of parametric data or information embedded within the objects which make up the model. For example, a window object will know it is a window. The window object will know it must be placed within a wall and will know its own size, materials, manufacturer and cost. The wall in which the window is placed will know that it is a wall. It will know that it needs to meet its floor and its ceiling, any adjustment in ceiling height will lead to automatic re-adjustment of the wall object to meet this new height.
There are four widely adopted definitions of maturity which define BIM using levels graded according to the amount of technical or collaborative working involved. These are:
Level 0 - Unmanaged 2D CAD with paper as the most likely data exchange mechanism;
Level 1 - Managed 2D or 3D CAD with a collaboration tool providing a common data environment;
Level 2 - Managed 3D environment. 3D models containing data or information are produced independently by all members of the design team; and
Level 3 - Fully integrated and collaborative process using web services. All disciplines feed into one single model.
Which factors of BIM require contractual documentation?
The construction industry in the UK is starting to adopt Level 2 BIM. Individual disciplines create their own independent models containing intelligent objects. During the design phase these independent models are saved at pre-agreed 'freezing points' and uploaded to a virtual cloud, termed the common data environment ("CDE"). The CDE stores the individual models and allows for each discipline to download all other models and layer these over their own model. One benefit of this systematic sharing of information so early on in a project is that clash detection can occur prior to work starting on site. BIM also allows for smarter on site working methods. Field BIM tools, such as Apple iPads (or other smart devices), allow workers to remotely access and even update project data. This allows for smarter and more efficient monitoring of the construction process.
In some ways BIM can be seen to simply be an extension of the current design process. CAD engineers have traditionally exchanged data and layered other discipline's drawings over their own. However, in reality BIM's use brings with it various nuances which have the potential to lead to dispute if not documented and managed correctly. Adhering to freezing points, management and maintenance of the CDE, selection and use of software and file naming protocols are just some of the BIM specific areas which if not managed correctly could lead to delay and expense. Should such issues ultimately lead to late delivery of a project and/or to the employer incurring expense it could be argued that liquidated damages would become applicable. Therefore employers must look to certainty of roles and protocols defined and detailed within the contractual documentation and to strict compliance with these from the entire project team.
BIM protocols
Whilst awareness and adoption of BIM is becoming more commonplace within industry, the legal documentation providing the backbone for construction projects has not followed at the same pace. BIM brings with it very subtle changes to the design process, changes which are not reflected in traditional standard contractual documentation utilised in the construction industry. One notable development in this area, however, is the publication by the Construction Industry Council (CIC) of a standard form BIM protocol (the CIC Protocol). This protocol was commissioned as part of the CIC's response to the UK Government's BIM Strategy, which set the ambitious target for the construction industry to be able to deliver information and services of at least Level 2 in the supply of construction services to the Government by 2016.
A BIM protocol is intended to provide commonality across the design team for a project with regard to the structure, co-ordination and use of project information. The protocol dictates various elements which are crucial to the smooth running of a BIM-enabled project such as software choice, timing of freezing points and data drops, project specific conventions for file naming and numbering and provision of the CDE. Also included is a model production and delivery table, specific to each project, which dictates the models to be produced, by whom and to what level of detail.
The importance of adherence to a legally binding protocol is highlighted, for example, by the potential risk that one consultant does not comply with the pre-agreed freezing points. This could lead to all other members of the design team working to an out of date model from one discipline which would obviously result in delays and cost. Further, if one consultant uses a different software package to that specified in the protocol and that being used by the other compliant members of the design team delay and cost may be incurred in converting models to a readable format. The Joint Contracts Tribunal recognised the importance of a BIM protocol detailing it as a primary requirement in its 'Fair Payment, Transparency and Building Information Modelling 2011 Public Sector Supplement'.
So far, BIM protocols have been bespoke to individual projects and their legal standing varies (depending on the contractual provisions). The CIC Protocol provides a standard form which is intended to be appended to the building contract, appointments and all relevant sub-contracts. Clause 2 of the CIC Protocol states that in the event of any conflict or inconsistency between the protocol and any other documents, the terms of the protocol prevail. The CIC Protocol should therefore be legally binding providing a level of comfort and clear identification of legal responsibility for all involved. However, while the CIC Protocol offers a valid attempt to address the legal issues surrounding the use of BIM, all practical requirements, such as the levels of data and information requirements, are reduced to its two Appendices, and these will need to be carefully considered and completed by anyone using the protocol.
The CIC Protocol introduces the role of Information Manager. Also commonly termed the BIM Manager, this role is critical to the successful implementation of a BIM project. Principal responsibilities of the Information Manager include managing the processes and procedures for information exchange and general implementation of the protocol. The Information Manager's role may be adopted by the lead designer or by any other member of the design team. Increasingly this is becoming a stand-alone role and in fact BIM management practices are springing up to address the need for this crucial role.
This role is therefore bring adopted on BIM projects currently being undertaken. However, there has been little shift in the drafting of appointments to fully cover the obligations and liabilities of such a role. An individual appointment is required where an Information Manager is providing stand-alone services. Where the Information Manager is also a member of the existing design team alterations need to be made to the Information Manager's overall appointment to incorporate both roles adequately and competently.
The Information Manager's role is not the only shift required within the drafting of appointments. The very nature of BIM means that the design team's work is front-loaded. Early clash detection and the provision for prefabrication before work has even started on site means that the design team's workload has shifted, a shift which ought to be reflected within the fee schedule. However, as consultants and contractors are leading the way with BIM, it may be difficult to negotiate with a hesitant employer to adjust the fee schedule to reflect this early workload. For an employer inexperienced with BIM and unfamiliar with what it can offer the front-loading of fees may require some negotiation on the part of the design team.
How is BIM competency measured?
An employer will look for certainty with regard to the competence of its design team. Whilst there are standards in place relating to BIM, notably British Standard PAS 1192-2, which deals with information sharing on BIM projects (compliance with which will be mandatory on all public sector jobs from 2016), what are the standards for individual model designers? The shift in technology will require consultants to exercise the reasonable skill, care and diligence to be expected of a properlyqualified and competent consultant (including in relation to BIM) - a slight but crucial change in wording is required when drafting BIM project appointments. But how such competency is to be measured is still unclear. Following their annual BIM survey, the Royal Institute of Chartered Surveyors (RICS) discovered that the current lack of standards is a perceived barrier to BIM uptake. In response, RICS are now looking at introducing a BIM accreditation to assist in delivering consistency.
Standard form building contracts will require specific amendments to incorporate BIM. The CIOB Contract for use with Complex Projects ("CPC"), published earlier this year, contains Level 2 BIM specific clauses which address the different requirements under different procurement methods. The CPC defines the role of Information Manager (therein termed the Design Coordination Manager) and, reflecting its intended international standing, allows for the default use of the American Institute of Architects standard form protocol (E202-2008) where no other protocol is defined.
The Royal Institute of British Architects (RIBA) has recognised the need to incorporate BIM and the RIBA Plan of Work 2013 provides the infrastructure to support BIM. The revised Plan of Work comprises eight stages defined by numbers 0-7 and eight task bars. Some task bars are fixed across the eight stages of work allowing for consistency across all documents whereas others are variable. The ability to switch certain task bars on or off allows for the flexibility needed for bespoke projects. Task bar 5 'Suggested Key Support Tasks', which clarifies the activities required to embed BIM into the process, is fixed but contains flexibility in that the tasks listed are not mandatory and so can be manipulated to adapt the documentation to adopt BIM.
BIM and Facilities Management
A key element of BIM which is likely to be of value to an employer is the completed, fully incorporated model. Not only does this model offer the benefits before works start on site of project visualisation and prefabrication, but possibly the main value of using BIM may come to the fore post-completion. The 3D model, complete with embedded data, offers a virtual facilities management environment. The model provides a ready-made and accurate building asset register alongside a 3D environment allowing virtual walkthroughs which can assist with locating and accessing faults. The expense of employing a surveyor to compile an accurate building asset register is thereby negated. Employers who look to benefit from this use of the model will also look for contractual obligations from the design team, for example that the model is truly representative of the built environment. In return, the design team will look to ensure that their intellectual property rights are protected. Should such matters be addressed within the protocol, the building contract or even in a separate licence specifically allowing the employer use of the model for facilities management purposes? If the latter is adopted, at what stage during the project should the relevant parties enter into such a licence and should additional consideration be applicable?
The introduction and adoption of BIM is changing the face of the construction industry. Design teams are implementing smarter working methods, allowing for smoother and more efficient progress on site. The contractual documentation which underpins this revolutionary process now needs to be fully addressed to ensure all legal obligations and liabilities are covered and that BIM is truly a legally enforceable tool.
This article was first published in Construction Law.
