Peter Jansen, Construction Lawyer at Keystone Law, discusses construction’s digital future with a focus on BIM and data ownership
The UK Construction Leadership Council was established to drive improvement and greater efficiency in the UK construction sector. In 2016 it published a challenging review by Mark Farmer, ‘Modernise or Die’, recommending options for achieving the council’s objective. One of these was a more widespread use of digitisation, especially the use of building information modelling, or BIM.
BIM involves generating and managing information about a building during its construction and lifecycle. It provides a 3D representation of the entire building and of each element or component which it comprises. It is intended that BIM will supersede traditional design tools such as two-dimensional drawings.
Despite this initiative and a requirement that all UK Government projects were to have adopted BIM by 2016, wider adoption of BIM has faced challenges and delay. One of these is the slow pace of resolving the many legal issues which inevitably arise if a BIM arrangement is to be overlaid onto existing contractual structures.
The two most widely used forms of building contract in the UK (JCT and NEC) have now introduced new provisions which accommodate the use of a ‘BIM protocol’. This is a supplementary contract entered into between the parties which regulates their rights and obligations concerning the BIM model for a given project.
The Construction Industry Council has developed a protocol for use in the UK which aims to meet these needs. Important issues surrounding BIM which any protocol would need to address include collaborative working, liability and copyright, as well as more practical questions relating to data.
The Farmer review argues that although BIM sits at the heart of any project, it must be supported by multi-party liaison and collaborative working. The culture shift in UK construction towards a more collaborative approach has been sluggish. This risks inhibiting the opportunity to maximise data sharing and transparency which is the real opportunity offered by BIM.
To be fully effective, a BIM protocol needs to be a user-friendly collaborative multi-party contract including the client, the contractor, first-tier designers and members of the supply chain. Mandatory provisions requiring the parties to adopt collaborative working are necessary (a voluntary ‘opt-in’ is likely to be ignored). Provisions which incentivise the sharing of information and encourage a tiered dispute resolution process should be used.
It is essential that each participant subscribes to the protocol, even though not all will be parties to the same construction contract. This requires the protocol to be incorporated in each contract and to include a mechanism whereby all participants will become bound into the protocol as parties to it when their contract is entered into.
The CIC protocol suggests risk allocation by means of a responsibility matrix. Currently, this is a blank page. It is for the parties to devise a template and then to populate it; there is no standard. The responsibilities of the parties are to be agreed and worked out for each project.
Within the model, changes and updating of information should be automatic; changes to design made within the model would be notified to all the parties to and incorporated into the design. If the model highlighted the consequences of design changes (including potential flaws), then this might have an impact on the standards expected of consultants, whose role might be refocussed on issues identified within the model.
But what if there is deficiency within the model itself? Generally, data integrity of the model cannot be guaranteed. Protocols usually limit the extent to which the parties may rely upon this data. This is understandable: the risk of, for example, inadvertently admitting corrupted files into the model is unknown and so any liability parties might have is limited or excluded. This could be a barrier to a wider adoption of BIM. For that reason there is a continuing need for the development of some form of warranty related to input data, and the functionality of the model.
Similarly, there are potential issues with the interoperability of software. These may require standardisation of software used and standardised procedures for detecting data errors and losses of data integrity, as well as for exchanging information.
As to copyright and data ownership, ownership normally remains with the creator of the relevant proprietary material. Other parties have a non-exclusive licence to use the material for the project as needed. In some cases, an employer or end user might require full copyright in the model, but these are likely to be rare.