BIM law and regulation in the United Kingdom

There are both UK and Scottish Government mandates for the use of BIM.

The UK Government produced its construction strategy in 2011. This was a wide ranging document aiming to deal with studies which had indicated that the UK was not obtaining full value from public sector construction. It included a programme of measures the Government wished to take in order to reduce costs by up to 20%. Amongst other measures, this provided that the Government would require fully collaborative 3D BIM (with all project and asset information, documentation and data being electronic) as a minimum by 2016.

In parallel with this was the Government Soft Landings (GSL) policy of September 2012. This recognised that the ongoing maintenance and operational cost of a building during its lifecycle far outweighed the original capital cost of construction. GSL identified the need for this to be recognised through early engagement in the design process. A recommendation was put forward that the GSL policy should apply to all new central Government projects and major refurbishments and should be implemented by central Government departments during 2013 working towards a mandate in alignment with BIM in 2016.

The aim of this was to align the interests of those who design and construct an asset with those who subsequently use it.

From October 2012 onwards, responsibility for GSL moved to the Government’s BIM Task Group in order to ensure that BIM and GSL were in alignment and to allow work towards the combined mandate in 2016.

The Scottish Government issued its BIM implementation plan in September 2015. This set out the strategy for public sector projects in Scotland to adopt BIM Level 2 by April 2017.

BIM will be an increasing factor in terms of overall competitiveness in the market.

In some respects, the private sector has been leading the way here although in the context of a “lonely BIM” model. What this means is that the private sector Contractors and also some parties lower down the supply chain, have identified the benefits of BIM Engineer – both financial and in programme terms – through the design process. It is being used to an advantage in terms of being able to effectively competitively bid projects.

Many of the larger main Contractors within the UK have been using BIM for a considerable period of time. However this is not BIM in the sense of the Government mandated model whereby the Employer works with an integrated team to generate benefits in terms of savings for the project as a whole. Further, the “lonely BIM” approach does not necessarily have the same benefits the Government is seeking in terms of the whole lifecycle of the project but tends to focus mainly on the construction phase and the savings which can be achieved during that process in time and money.

To date, the industry appears to have been relatively slow in dealing with BIM in the facilities management sector. This is perhaps because many of the private sector developers are not necessarily involved in buildings which they then wish to occupy and use but instead buildings which they wish to either sell or rent commercially meaning that they are less interested in the lifecycle costs of maintenance and operation of the building.

The BIM Protocol is a key requirement for a project involving BIM. In the UK, the most favoured Protocol being used is the one prepared by the CIC. It would be expected that the Protocol would be incorporated into contracts. Where a BIM Protocol is incorporated, there are a number of areas where standard forms will require drafting changes to ensure there are no clashes between contract conditions and Protocol and that the contract works as a whole. These include:

• Definitions.
• Clarity over who is performing new roles (e.g. Information Manager)
• Design submission procedures.
• Information required schedules.
• Communications Protocol.
• Documents/Data – what are to be provided, by who, when, where and how.
• Hierarchy provision – to provide for what takes precedence if there are conflicts between the contract provisions and the Protocol

This also requires to be stepped down into subcontracts to ensure that the whole supply chain is under the same obligations.

Employer’s Information Requirements form part of the CIC BIM Protocol and are a key document required to set out BIM – related requirements.

The approach of the standard form drafting bodies has varied.

JCT (Joint Contracts Tribunal) first published a Public Sector Supplement in 2011 introducing brief BIM-related amendments. The Scottish equivalent, SBCC (Scottish Building Contracts Committee), published an equivalent Public Sector Supplement for Use in Scotland, also in 2011. The BIM provisions in these are incorporated and extended in the 2016 edition of the JCT form.

The contract amendments provide for the inclusion of “any agreed Building Information Modelling Protocol” as a contract document or within the Employer’s Requirements.

The JCT approach is not to specify any particular Protocol but to allow parties to decide which to incorporate.

NEC3 published a guide “How to use BIM with NEC3 Contracts”. The NEC3 contract assumes adoption of the CIC BIM Protocol.

It suggests that the parts of the Protocol which deal with technical requirements should be included within the Works Information, Subcontract Works Information or the Scope. This allows amendments to be instructed which can be dealt with as compensation events under the contract.

The parts of the Protocol which modify conditions of contract which deal with parties’ rights and liabilities should be added by Z clauses into the contract conditions. This prevents them being amended unilaterally.

The Guide recognises there is a need for compatibility between the Protocol and the contract and also the potential need for additional compensation events, for example for events preventing compliance with delivery of models in accordance with the Protocol.

The CIOB Contract for Use with Complex Projects includes detailed provisions for use of BIM including provisions related to the role of the design coordination manager, provision of a common data environment, software selection, suitability and integrity, archiving of each completed level of development, maintenance and updating of the model, indemnification of other design users in respect of Contractor design and notification of clashes.

This contract allows parties to select the Protocol of their choice but provides for a default option if none is selected, namely the American Institute of Architects’ Protocol.

The FIDIC contract so far has not made any specific provision for BIM.

The PPC 2000 contract, which is a multi party contract form, was amended by addition of an Appendix 10 in 2013 which makes provision for BIM. This is the contract which was used on the UK Government pilot projects at Cookham Wood and North Wales Prison.

The JCT Constructing Excellence contract is considered to be one which may be suitable for use in a BIM environment given its focus on collaborative working concepts. There have so far been no BIM-specific amendments made to it.

All of the above contracts focus only on the construction phase of buildings. So far none of the standard form drafting bodies have produced a facilities management contract to deal with the operational or “in use” phase of the building. It is anticipated this will follow given the focus on this within the Government documentation regarding BIM.

This is likely to raise issues regarding the interface between the construction Contractor and the FM Contractor and liabilities during the interface period.

The RIBA (Royal Corporation of British Architects) Plan of Work 2013 included new tasks and stages including activities required for BIM. These include agreement of the Design Responsibility Matrix; information exchanges; preparation of the Project Execution Plan including technology and communication strategies; and, consideration of common standards.

Tasks are included for UK Government Information Exchanges. This was added to encourage consideration of the stages at which the UK Government requires information to be exchanged and because it is looking for data rich information which can be used during occupancy. The principal means of delivering this information will be COBie which is effectively a spreadsheet containing data about each aspect of the building.

Stage 7 within the Plan of Work is a new stage called “In Use”. It recognises the benefits of capturing design information to assist with the operation and use of a building. It includes a post occupancy evaluation and review of performance. It also requires updating of project information as required until the end of the building’s life.

As part of the Government’s push towards implementation of BIM, much has been done in terms of publication of technical documents. This includes the CIC Building Information Model Protocol.

The BIM Protocol is a key part of the BIM contractual structure, intended to be incorporated into appointments between the Employer and the project team and, in turn, the supply chain.

The CIC Protocol includes a number of key provisions where there is a reasonable likelihood of there either being a clash between it and the standard form contract provisions or where some addition is required to the standard form conditions to recognise Protocol requirements. For example, the Protocol introduces a new Information Manager role.

There are provisions concerning Employer and Contractor obligations including provision of design information in the form of models, applicable standards, Employer’s Information Requirements, delivery of models, archiving procedures and resolution of conflicts.

The Appendices to the CIC Protocol include:

• Levels of Detail and the Model Production and Delivery Table; and,
• Information Requirements (which include the Employer’s Information Requirements, BIM Execution Plan, incorporating reference to PAS 1192:2-2017 – Specification for information management for the capital/delivery phase of construction projects using building information modelling and Project Procedures).

A Second Edition of the CIC Protocol is currently being prepared.

The CIC BIM Protocol provides that in the event of a conflict between the Protocol and other contract documents, the terms of the Protocol prevail. This is the opposite to the position in most standard form contracts.

In making drafting changes to standard forms, a hierarchy provision is required to provide for what takes precedence if there are conflicts between the contract provisions and the Protocol. That may require to be considered on a clause by clause basis to ensure that any conflicts or inconsistencies are appropriately dealt with.

The CIC has published an Outline Scope of Services for the Role of Information Manager. This anticipates that the role of Information Manager is delivered as part of an existing appointment by a capable party.

The role involves duties concerning the exchange of information through a Common Data Environment, establishing an information structure and maintenance standards for the information model, maintenance of the information model and management of the Common Data Environment processes and procedures.

There are roles concerning project information management in relation to information structure such as: software platforms appropriate to meet Employer’s requirements and the project team’s resources; responsibility for provision of information and level of detail of information required; and, the process for incorporating as constructed, testing, validation and commissioning information.

The Information Manager deals with integration of information within the project team and coordination of information by the design lead.

The role also involves supporting the collaborative working approach.

Finally, the Information Manager would be involved in establishing information exchange processes and participating in and complying with project team management procedures and processes such as: performance management; change management procedures; attendance at meetings; and record keeping, archiving and audit trail for the information model.

Currently, there is some debate around who would be an appropriate person to take on the Information Manager role. In some respects, this is a technical/IT role given the level of involvement with information and data exchanges. In other regards, such as considering the terms of information provided, it would require someone with a design background.

It may be in the future that the role of Information Manager will develop as a separate specialism.

The Construction Industry Council (CIC) has published a Best Practice Guide for Professional Indemnity Insurance when using BIM. The current position in the insurance market is that there are no coverage restrictions due to Level 2 BIM being used on a project. Insurers regard use of BIM as not making any material change to the risk profile on a contract and in fact, possibly a risk mitigation tool. This means that no endorsement or policy modification would be required. There are also minimal (and maybe no) premium implications.

Insurers are generally comfortable with the CIC BIM Protocol because it provides a clear liability picture. It is regarded as “best practice”. The advice if other Protocols are used is to discuss this on a case by case basis with brokers.

The pragmatic advice for parties operating in a BIM environment would be to discuss this with their broker or insurer since it is likely to be a material fact relevant to coverage. Insurers will currently tend to note that but not make any other changes to the policy as a result.

In general terms, insurers are keen to have clarity on roles and responsibilities. Insurers are comfortable with Level 2 BIM on the basis that lines of responsibility are clear and it is possible to identify which party is the author of any models passed to the Information Manager. It is understood that all of the main types of software operate in such a way as to ensure an appropriate audit trail for changes is created.

In the future, the market may move towards Integrated Project Insurance where all parties are covered on a no fault basis with each party contributing a percentage of the premium. This is available in the UK insurance market now although on a limited basis and without the benefit of reinsurance cover. This means policies are expensive and limited in terms of the level of cover available.

So far, the standard form contracts have not made any amendments in respect of design liability and there is no need for them to do so. There is no change to the standard of care required in respect of design simply as a result of the use of BIM.

Concerns are often expressed about liability for data. The CIC Protocol provides that project team members do not warrant the integrity of any electronic data delivered in accordance with the Protocol and have no liability to the Employer in connection with any corruption or unintended amendment, modification or alteration of the electronic data in a Specified Model which occurs after it has been transmitted by the project team member, except where that occurs due to the project team member’s failure to comply with the Protocol.

This should provide comfort for those parties providing data but it does beg the question of what happens if any of these events occur. On current drafting, this would appear to be a risk borne by the Employer and it may be that consideration is required to insuring this risk.

The CIC Protocol also provides that the project team member has no liability to the Employer arising out of any modification or amendment to or any transmission, copying or use of the Material (defined broadly as meaning all information in any electronic medium prepared by or on behalf of the project team member and comprised in the Models) or any proprietary work contained within the Material other than in respect of permitted purposes. There is a reciprocal provision providing that the Employer similarly is not liable to the project team member. This should allay concerns about liability for changes to material.

Further, the software does provide an audit trail so that it is clear what changes were made to data and by who. However, the intention at Level 2 is that it is only the author of the material who would make changes. If a clash is detected, for example, the authors of the two clashing elements would be requested to make the changes necessary to their parts of design.

The CIC Protocol makes provision in respect of Use of Models. Rights (including copyright) in the material remain vested in the project team member. The Employer is given a non-exclusive licence to transmit, copy and use the Material and any proprietary work contained in it for the Permitted Purpose.

Permitted Purpose broadly means any purpose related to the Project (or the construction, operation and maintenance of the Project) which is consistent with the applicable level of detail of the relevant Model and the purpose for which the relevant Model was prepared.

Importantly, the licence does not include the right to amend or modify the material without the permission of the project team member except in specified, limited circumstances. It also excludes the right to reproduce any proprietary work contained in the Material for any extension of the Project.

There are provisions for grant by the Employer of licenses/sub-licenses to project team members in respect of the work of other project team members on the same basis as above. The licence and sub-licence granted may be suspended or revoked in the event of non-payment if the licence provides for this.

Given that BIM is meant to apply to the whole life cycle of a building, it is thought that this is an area which will develop further in future.

This will vary from contract to contract. However, asking what is the purpose of data being provided will be the key.

At handover and then for the occupation phase, the data necessary is that which is required for the operation and maintenance of the building. This will be significantly less than the totality of data available. Thought should therefore be given to this when entering into the contract to avoid the “safe” option of requesting everything as this will increase the cost and result in an unmanageable amount of data being provided. Too much data may prove to be as bad as too little.

The current position with standard form contract drafting bodies is that there is no difference in the position regarding warranties/indemnities in a BIM project. However, one factor which may be worth taking into account is the new role of Information Manager.

It is worth bearing in mind that the purpose of collateral warranties is to create a direct contractual link between the parties to it.

The CIC’s Outline Scope of Services for the Role of Information Management anticipates that this role will be delivered as part of an existing appointment. Clearly, if that is the case, and the Information Management role is simply an add on to services being provided by a party who is already providing a collateral warranty, there would be no need for a further warranty from that party. However, if the role develops such that it is a new party which takes on this role then it may be that warranties would be required.

Experience to date in the UK has been that the full benefits of BIM are more likely to be achieved where there is early involvement of the project team and also other parties such as the building end user.

In the Cookham Wood pilot project, there was an early involvement period of 6–8 weeks. One of the lessons learned was that a longer period would potentially have led to more savings being identified. On the subsequent trial project at North Wales Prison, a 24 week period is being trialled. It may be that this increases the length of time taken to plan and design projects. However, over the totality of the design and construct phase, it may be that this will lead to savings in cost, programme or both as a result of more efficient or innovative ways of working being identified. The aim also is to introduce savings to life cycle cost over the whole life of the building.

A clear need has been identified for there to be a tie-up between the very early design phase of a building and its end use. There is a need to consider ongoing and protracted involvement over the life cycle of the building. It was suggested in the context of the Government Soft Landings initiative that those who design and construct buildings should be required to prove their operational performance for a period of 3–5 years. That is also in line with the whole lifecycle approach of BIM.

The ongoing availability of data necessary for the operation, maintenance and use of the building is one of the key benefits of BIM.

There is a clear need for a facilities management contract on an integrated basis with the construction contract, potentially with an interface agreement to deal with any overlap between the contractual arrangements, for example in the aftercare period following handover of the building but during which the Contractor is expected to prove the operational performance of the building.

This is a similar model to that currently in use on PPP contracts (although without the PPP funding considerations) where this is not an unusual arrangement.

There is clearly also a need to contract for the handover of data at construction completion and also for arrangements to allow for use of material and for this to be updated to ensure it remains relevant and useful throughout the building’s life.

United Kingdom

The UK Government and other organisations have put in place huge quantities of information aimed at allowing all parties to access this information free of charge online.

Information is available through the BIM Task Group website and also through the BIM Toolkit:

• http://www.bimtaskgroup.org/
• https://www.thenbs.com/services/our-tools/nbs-bim-toolkit
• http://www.bimtaskgroup.org/bim-protocol/
• http://shop.bsigroup.com/Navigate-by/PAS/PAS-1192-22013/

The UK Government’s “Digital Build Britain” sets out a vision for reform of the construction sector by taking advantage of the opportunities offered by the Digital Economy – see http://digital-built-britain.com/. The UK Government’s vision is to continue the BIM journey from the implementation of Level 2 and to build on this into Level 3.

The overriding focus is a wish to align the interests of all parties involved, throughout the lifecycle of a building. This will require the creation of a contractual framework which encourages open and collaborative working. That needs to be reflected in a contractual structure which clearly regulate rights and liabilities in a way which allows for this ethos to continue when things go badly rather than descending into disputes and old-style conflict. That is particularly the case where the project is a one-off and there is to be no ongoing relationship between the parties but can equally arise in long term contracts if enough money is at stake and relationships start to deteriorate.

The contractual structure needs to extend beyond the design and construction phase if it is to achieve some of the other goals which include designing buildings with a view to aligning the construction and operational and facilities management aspects.

There is a drive to seek best lifecycle solutions with commercial models based on Totex delivery requiring a move towards considering total expenditure over the whole life of a building. This is in contrast to a focus on construction costs with discussions around value engineering to decrease construction programmes and costs which may be done without an eye to the implications of this on the operational phase of the building, its life cycle costs, energy performance and the end user experience.

A further goal is the capture of information to allow continual learning and improvement. Lessons learned on one project are to be applied to the next to drive both reductions in cost and more user friendly, flexible buildings able to be adapted as needs change. There is a huge focus on use of data to capture information about performance of buildings.