BIM Governance Issues

Shahida Rajabdeen
As Building Information Modelling (BIM) becomes more widely adopted, the data-rich collaborative environment raises some legal and contractual questions for the industry.

The UK government has mandated Level 2 BIM on public sector projects by 2016, bringing these issues into sharp focus. A clear understanding of expectations and responsibilities, specified in a suitable form of contract, is the key to success. We take a look at some of the emerging issues below.

Organisations can realistically expect to invest more time in negotiating the risks, defining the roles and responsibilities at the outset and detailing these within the contract.

The use of BIM has an impact on relationships between all parties involved in the project, affecting roles but not greatly changing responsibilities. Throughout the industry, some essential investment is required in standard protocols and service schedules to define BIM-specific roles, ways of working and desired outputs. Organisations can realistically expect to invest more time in negotiating the risks, defining the roles and responsibilities at the outset and detailing these within the contract. There are lessons to be learned from the US, where BIM is a more mature methodology.

Standard of Care, Negligence and Liability

The standard of care relates to the duty of care owed by designers, in relation to their professional negligence. BIM enables designers to more easily identify and reduce design clashes. However this does not result in perfect drawings and there may still be construction coordination issues. In the US, the Spearin doctrine is a precedent that has traditionally enabled contractors to claim if there are any errors or omissions in the drawings. With BIM, the contractor’s early involvement helps to alleviate design errors, preventing the need to use the Spearin doctrine. These issues are currently untested in UK case law, but the more involvement the contractor has in the design of the building, the less likely any sort of warrant would be implied.

Copyright Protection

Copyright is a major concern with BIM, especially at Level 3 where many parties feed into a single design. Standard UK practice is that the creator of the original BIM model retains ownership of the model and the copyright. This individual or company then agrees to license relevant parts of the model to other parties under certain contract conditions. However this is not always the case: the original creator may insist on retaining full ownership and copyright. The Building Information Modelling (BIM) Addendum states: ’The Project Owner’s entitlement to use the Full Design Model after completion of the Project shall be governed by the Contract between the Owner and the Architect/Engineer.

Design and Privacy Issues

Design and privacy issues can be overcome by taking time to plan and fully agree contracts and responsibilities prior to commencing the design. Disputes are minimised if the contract is properly detailed at the outset and not left to interpretation.

Contracts

The legal issues identified above will require careful consideration during the procurement process, prior to detailing within the main contract. A BIM execution plan or BIM protocol is recommended within the contract.

The UK does not have a BIM specific contract at present. A review of the current standard forms of contract indicates that collaborative/partnering contracts are more likely to suit a BIM procured project.

BIM will inevitably bring new challenges and questions as the methodology matures.

In the US, the American Institute of Architects (AIA) establishes the protocols and procedures to be followed at each stage of the building process, identifying model authors, agreeing file format, and establishing the model manager’s responsibilities, which should include interoperability and archiving. In the UK the Construction Industry Council (CIC) is currently developing a BIM protocol and defining the role of a BIM information manager.

The US is one step ahead here, with its ConsensusDOCs highlighting the appointment of an information manager who is responsible for the BIM execution plan. The BIM execution plan clearly defines the protocols for technology interoperability and project design delivery milestones. Alternatively an Integrated Project Delivery strategy could be used, as in the US. With this procurement mechanism, the client, designer and contractor enter into one contract. This overcomes privity of contract issues, copyrights, standard of care and liability issues. We are starting to see this approach used in the UK.

BIM will inevitably bring new challenges and questions as the methodology matures. However with careful drafting of the contract, these should be alleviated. Faithful+Gould is actively engaged in defining and delivering standards and working practices which will make a positive contribution to the effective use of BIM. We are working on high profile BIM projects including Birmingham City University and HM Young Offender Institution Cookham Wood for the Ministry of Justice.

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