BIM: The Law And You - What is all the fuss about?

March 2, 2017

BIM: The Law And You - What is all the fuss about?

When I started in my career as a contracts manager I produced electrical layouts for buildings using a pen and paper on a drawing board. The move from this process through CAD to BIM has resulted in, on one hand very little changes and on the other large differences which are now revolutionising the construction industry.

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 light fitting object will know it is a light fitting. The light fitting object will know it must be placed on a ceiling and will know its own size, materials, manufacturer and cost. The ceiling on which the light fitting is placed will know that it is a ceiling. It will know that it needs to meet its supporting walls, any adjustment in the height of the walls will lead to automatic re-adjustment of the ceiling object and subsequently the light fitting object will move to meet this new height and remain attached to the ceiling.

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.

The construction industry in the UK is currently working towards Level 2 – the UK Government’s BIM mandate for all centrally procured public sector projects to use Level 2 BIM is set for 4 April 2016. Adoption across the globe is gathering pace with Sweden, the USA and Brazil arguably leading the way.

Adoption of Level 2 BIM in the UK is resulting in individual disciplines creating 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 other smart devices, allow engineers to remotely access and even update project data. This allows for smarter and more efficient monitoring of the construction process.

In order to produce a model which meets the needs of the ultimate end user the employer should put together an Employer’s Information Requirement (EIR) document. A BIM consultant or member of the design team can assist with employers who are new to the process. The EIR document then acts in a similar manner to Employer’s Requirements in a design and build project. The EIR does not become incorporated as a contractual document but should be referenced in the building contract.

In response to the EIR the design team produce a BIM Execution Plan (BEP) which acts like design and build Contractor’s Proposals. The BEP responds to the employers requirements from the EIR and provides roles and obligations to meet them. This document is also referred to in the contract but due to its evolving nature is not included as a fixed document.

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, filing naming conventions and provision of the Common Data Environment (CDE). Also included is a model production and delivery table which dictates the models to be produced for the project, identification of the party to produce them and to what level of detail they are required. The Protocol is produced in response to the EIR and BEP and allows for contractual incorporation of the relevant terms allowing for legal implementation of the processes and procedures required to produce a model which adheres to these two higher level documents.

The importance of adhering to a legally binding Protocol is highlighted, for example, by the potential risk that one designer 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 particular discipline which could obviously result in delays and cost. Bespoke BIM Protocols have been used on individual projects and their legal standing varies (depending on the contractual provisions which govern them). A Protocol should be appended to all relevant contract documents (including appointments and sub-contracts) on a BIM project, with drafting amendments made in the contracts to incorporate the Protocol – if just appended without a clause requiring adherence to the Protocol it becomes simply a floating document with no contractual obligation to work in line with its provisions.

In some ways BIM can be seen simply as an extension of the current design process. CAD engineers have traditionally exchanged data and layered other disciplines' 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 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 will look to certainty of the Protocol and to strict compliance with these from the entire project team.

Whilst there is no recognized standard in the UK for a ‘BIM’ MEP consultant or designer as yet there are a set of standards evolving which dictate and govern the processes and set out best practice. The suite can be found online and includes:

  • BS 1192:2007 - Collaborative Production of Architectural, Engineering and Construction Information
  • PAS 1192-2 - Specification for information management for the capital/delivery phase of construction projects using building information modelling
  • PAS1192-3 -Specification for information management for the operational phase of assets using building information modelling (BIM)
  • BS1192-4 - Collaborative production of information Part 4: Fulfilling employers information exchange requirements using COBie – Code of practice
  • PAS 1192-5 - Specification for security-minded building information management, digital built environments and smart asset management” is currently in development

When an employer first sets out on a BIM journey the end goal should be the starting point. Whilst the BIM process assists and allows for a more efficient design process BIM shows a real benefit at the point of hand over of the building into the facilities management (FM) stage. The drawings and operating and maintenance information in the model negate the requirement for a multitude of folders of information to be produced for FM – it is now readily available at the click of a mouse button or touch of the screen. However, in order to ensure that the information contained within the model is as the FM team require it the employer needs to evaluate this need right at the start and throughout the design and build, perhaps by implementing Government Soft Landings (GSL). Inclusion of the FM team from day one provides a helpful reminder of the long-term gain and purpose of using BIM.

At Level 2 BIM each designer retains control and ownership of their own models. The IP process therefore alters very little from the pre-BIM world and thus there is little need for whole scale IP drafting amendments in the appointments and contracts. Correct author labelling and file naming should allow for identification of the model elements with the model author. The employer will request a license to use the models and the information contained within them. If manufacturer's objects eg light fittings are used within the model the designer inserting them should obtain a license for them to be used and for the employer to use them going forward.

Whilst Level 2 BIM provides a huge leap forward for technology use and application in the UK construction industry it does not bring with it the need for wide spread legal changes and alterations. Existing forms of contracts are still suitable, albeit with slight drafting amendments to reflect the nuances that BIM brings. A few new documents are required to fully record the liabilities and obligations of the team. So whilst it is not exactly business as usual, the amendments required to reflect the process and the roles are minimal and should in no way hold up use of BIM on a project. 


Author Profile

Sarah Rock

Sarah Rock
Sarah is an associate in the construction and engineering team at Herbert Smith Freehills specialising in transactional construction law and BIM. Prior to becoming a solicitor Sarah spent 9 years in industry working as a contracts manager for an electrical contractor. During this time Sarah qualified and worked as a CAD engineer.


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