BIM and legal issues: Model behaviour

Last year Building briefly reported on the first claim to arise in the United States from the use of Building Information Modelling (BIM). It concerned the construction of a university life-sciences building. The architect and M&E consultant had used BIM to fit the engineering systems into the roof void of the building. The space was very limited; the installation could only be carried out if done in a specific sequence.

Somebody had forgot to mention this to the contractor. He had completed 70% of the work before realising that the rest of the installation would not fit. He claimed against the client who, in turn, issued claims against the architect and consultant. Eventually a settlement was agreed in favour of the client with the contractor, architect and M&E consultant each contributing to it.

This kind of dispute could, of course, occur on any project irrespective of whether or not BIM was used - it was not linked directly to the use of BIM. One can only speculate, however, as to the reason why the modelling process did not simulate the sequencing of the installation or, if it did, why the contractor was not aware of this.

The industry will not rush to invest in bim training and technology if it is introduced into traditional procurement processes that are now primarily aimed at facilitating risk dumping

In a case such as this the key question would be: who had assumed the risk that the installation would not fit into the roof void unless carried out in a specific sequence?
Obviously, the answer would depend upon the wording and type of construction contract used but, in this country, such risk would lie with the contractor more often than not.

But I can imagine a similar problem here. For example, the M&E contractor is presented with a consultant-designed model of the building (or section of the building). He is then told to complete the design and carry out the installation in accordance with the design intent as represented by the model. In the present state of the law the contractor is likely to be responsible for any shortcomings in the design he has inherited via the model.

In Co-operative Insurance Society Ltd vs Henry Boot (Scotland) Ltd (2003), Judge Seymour held: “Someone who undertakes, on terms such as those of the contract … , an obligation to complete a design begun by someone else agrees that the result, however much of the design work was done before the process of completion commenced, would have been prepared with reasonable skill and care.” (emphasis added)

In fact, contributing or inputting to someone else’s model could, unwittingly, saddle you with extensive design responsibility. If, for example, a manufacturer has supplied data relating to his product, this could require a re-decision of other elements. He could be lumbered with liability for such re-design without having any PI cover. The industry will not rush to invest in BIM training and technology if it is introduced into traditional procurement processes that are now primarily aimed at facilitating risk dumping. Moreover there is concern that many firms in the supply chain will only discover late in the day - that is, after they’ve been appointed - that their project is BIM-enabled. Another, more likely, scenario is that the tender information will simply state: “BIM is a requirement on this project.” Everybody will then be left wondering what this means. The government regards BIM as a collaborative tool for eradicating waste and inefficiency in the delivery process - not as a tool for perpetuating it.

So, what should happen? Project participants - client, consultants, contractors, FM firms, manufacturers - should, at the outset, agree a BIM implementation plan.

The plan should address matters such as:

• what models are to be created and by whom and for what purpose (that is, what are the intended outputs);
• definition of the content of each model and level of detail required from each participant at specified milestones;
• how any conflict between model content is to be resolved;
• levels of reliance that can be placed upon the data content of models and at what stage in their development;
• the software platforms intended to be used, processes for transferring and accessing model files and file storage location;
• ownership of model(s) and data inputs;
• management of the modelling process.

This is not intended to be an exhaustive list. But the overriding factor is that all participating parties should have had the opportunity, as a team, to discuss and agree the content of the BIM implementation plan. Then everyone should know what is expected of them.

This is, after all, simple common sense.

Rudi Klein is a barrister and chief executive of the Specialist Engineering Contractors’ Group

Building and BD Present BIM Show Live, a 2 day conference and exhibition taking place on the 9 and 10 May 2012 at the Business Design Centre, London. Visit www.bimshowlive.co.uk to register.