Understanding the contractual framework for the implementation of BIM is an important first step to removing any ‘blockers’ to successful BIM construction projects. Andrew Marsh, Partner at DAC Beachcroft LLP provides an overview of the legal considerations
In 2013 the government launched its Construction 2025 Industry Strategy to provide a vision for “long-term strategic action by government and industry to continue to work together to promote the success of the UK construction sector”. Building Information Modelling (BIM) was high on the agenda. It identifies BIM as critical to allow the sector to deliver more sustainable buildings more quickly and more efficiently.
The Government is keen to put the UK at the forefront of BIM and by 2016, all centrally procured government construction projects must be delivered using BIM. This will apply throughout the supply chain across all values of project. However, in the NBS’ recent survey, 95% of respondents were aware of BIM but only 54% were actually using it. There could be a number of reasons for this relatively mixed take up; lack of knowledge, lack of opportunity, lack of technical skill or lack of resource. An understanding of the contractual framework for the implementation of BIM is an important first step to removing any ‘blockers’ to the successful implementation of BIM construction projects.
What is BIM?
“At its simplest level, BIM provides a common environment for all information defining building, facility or asset together with its common parts and activities. This includes building shape, design and construction time, costs, physical performance, logistics and more” (RICS “What is BIM”).
BIM is used at a number of different levels of maturity from Level 0 being a paper based process with CAD drawings, to Level 3 which is a fully integrated and collaborative process on a web-enabled hub. For 2016, the government target is Level 2 BIM in which separate disciplines create their own models but all project data is shared electronically in a common environment. The Construction 2025 Strategy expects to see the UK Government and industry to move to Level 3 BIM between 2013 and 2025.
The contractual framework for BIM
The contractual framework for Level 2 BIM has been established. Level 3 BIM presents a different set of contractual challenges which are not addressed in this article.
The government’s BIM Strategy followed the recommendations of the BIM Industry Working Group which recognised that contractual issues had the potential to act as a source of inertia holding back the adoption of BIM on projects.
The Working Party report dated March 2011 recommended little change to the ‘fundamental building blocks’ of existing contracts to facilitate working at Level 2 BIM. The Working Party recommended the use of simple amendments to existing standard form contracts, to incorporate standard BIM Protocols and Service Schedules to define BIM specific roles; ways of working and desired outputs.
The Construction Industry Council’s (CIC) response to the Government’s BIM Strategy was to issue a CIC/BIM Protocol for use on all common construction contracts to support Level 2 BIM. There are other Protocols available, but this article concentrates on the CIC/BIM Protocol so as to illustrate the relevant issues. Further, the JCT does anticipate the use of the CIC/BIM Protocol (“the Protocol”).
The Protocol makes minimum changes to pre-existing contractual arrangements and sets out the parties obligations to provide defined elements of their works/services using models. Once incorporated the Protocol is a contractual document and takes precedence over the other contract documents.
The CIC also sponsored the production of PAS1192-2:2013, by the British Standards Institution, which is a specification for the information management requirements necessary for working at BIM Level 2.
The Protocol should be read in conjunction with PAS1192-2:2013.
All parties engaged in a project using BIM are required to have the same Protocol appended to their contracts. This will ensure common standards and methods of working. It is the responsibility of the Employer in each contract in the supply chain to ensure that a Protocol is appended to the contract.
The Protocol includes a ‘model’ amendment to expressly incorporate the Protocol into standard forms of contract.
Model Production and Delivery Table (MPDT)
The MPDT is a key contractual document annexed to the Protocol. It defines which models are covered by the Protocol, allocates responsibility for the preparation of the models and identifies the Level of Detail (LOD) required at project stages or ‘data drops’.
Definitions of LOD’s can be found in PAS 1192-2. The project stages or ‘data drops’ should match the stages used on building and infrastructure projects, or professional appointments, such as RIBA Plan of Work.
The Information Requirements (IR)
The IR is the second key contractual document annexed to the Protocol. The IR contains the information necessary for the production and development of the models in a consistent and uniform way across the project. For example, it will prescribe the Common Data Environment, the software details, file formats, file layers, the language, abbreviations and symbols, zoning requirements and information protocols such as spatial co-ordination and information exchange.
It is the responsibility of the ‘Information Manager’ to agree and issue the IR, which should be incorporated into all contracts on the Project.
The Protocol assumes that the IR (and the MPDT) will be completed and developed by someone with a strong technical knowledge of BIM.
The Information Manager
The Protocol requires the Employer to appoint an Information Manager. It is expected that this role will form part of a wider set of duties, and is likely to be performed by the Design Lead. However, it could be a stand-alone appointment if the employer chooses to.
The scope of services for the Information Manager needs to be properly defined in its Appointment.
The CIC have published a Scope of Services document for the role of Information Manager which includes:
- Establishing the Common Data Environment;
- Establishing processes and procedures to receive information into the Information Model;
- Maintaining the security and integrity of the Information Model;
- Agree and implement plans for the provision of information, the level of detail and the relevant stage.
The Information Manager has no design related duties and is in effect, the ‘policeman’ for the Information Model.
Intellectual Property Rights
As a consequence of the increased collaboration necessary when working on a project using BIM, the issue of intellectual property rights is obviously a concern and it is specifically addressed in the Protocol.
The provisions in the Protocol regarding IP rights are reasonably complex, but the basic principles of the arrangements are as follows:
The ownership of rights in the models produced by a Project Team member remain vested in that Team Member.
However, the Employer is granted a non-exclusive licence to use the material in the models for the ‘Permitted Purpose’ which is defined as; “a 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”.
The licence also permits the Employer to grant sub-licences on identical terms to other Project Team Members. The licence does not include the right to change any information in the Model without the Project Team Member’s consent, except in limited circumstances. So, in short, the Intellectual Property rights in the Information Modelling remain with the originator, but the Employer and the other Project Team Members have the benefit of licences to use that information for ‘the Permitted Purpose’.
Clearly the definition of “Permitted Purpose” is an important one, hence the importance of addressing properly the terms it refers to in the MPDT and IR.
The Protocol requires the Employer to ensure a Protocol is incorporated into all Project Agreements, that the IR and MPDT are reviewed and updated at relevant stages, and that an Information Manager is appointed at all times.
The Project Team Members are required to produce the specified Models to the required Level of Detail specified in the MPDT, using the level of skill and care required under the original contract, at the stage(s) specified in, and in accordance with the IR.
In terms of liability for the Information Modelling, the Protocol states that a Project Team Member shall have no liability for the use of, copying of, amendment of or modification of such information other than as permitted by the licence to use for the ‘Permitted Purpose’.
Similarly the Employer’s liability for any Information Modelling provided to the Project Team Members is limited to that in respect of the licence it granted for use for the ‘Permitted Purpose’.
The contractual framework for operating at BIM Level 2 is available via the Protocol, supplemented by PAS1192-2 and existing standard form contracts.
These are standard form documents. Amendments to these documents could create increased liability and contractual uncertainty.
The effectiveness of these contract documents is assisted by careful comprehensive and informed preparation of the technical data which supports them – the MPDT and the IR.
The above is a summary of the contractual considerations. This is of course a ‘new’ area for participants in the industry and it is recommend that legal advice is obtained before entering into any contractual arrangements.
DAC Beachcroft LLP
Tel: 0113 251 4700