The legal implications of using Building Information Modelling

Building information modelling (BIM) has enormous potential to improve the construction process, but will construction contracts help or hinder it?

Carpenters have long known how to reduce waste of materials and, for probably just as long, construction projects have been built twice: once on paper, once on site. BIM allows the two-dimensional paper plan to be replaced by a three-dimensional computer model, which means the entire life of a facility can be planned and implemented in a co-ordinated way, from initial construction to eventual decommissioning. In its ideal form, there would be a single model to which all those involved in design, construction and maintenance would contribute.
Paul Morrell, the government’s chief construction adviser, is an advocate of BIM and it is possible that it will become a requirement of publicly procured projects. Private sector developers will doubtless also want to reap the benefits of BIM.

Although BIM is a hot topic today, in fact computer-aided design has been around for some time - AutoCAD was released in the early eighties. Other concepts that fit with the overall potential of BIM, such as life-cycle costing, have been around for a while too. So we do have parallels for comparisons and it is worth considering how contracts have dealt with those concepts previously.

Mistakes should be found and eradicated long before they reach site. but who can guarantee this? Parties need to decide how to divide responsibility for those that get through

PFI and PPP projects have been with us since the late nineties and in these responsibility for both construction and operation of a facility sits with the special purpose vehicle (SPV) engaged by the contracting body. However, in the contractual matrix, those elements are usually subdivided into separate contracts - one for the construction works, one for the facilities management (FM) services. While the construction and FM contractors are often linked by an interface agreement under which they owe duties to each other, the overall process is not truly collaborative in a way that would maximise the potential of BIM.

The JCT published its Major Project Form in 2003 and this had a number of innovative features. These included the option to use third-party rights instead of collateral warranties (something that is only just catching on in some quarters) and a provision where the contractor is encouraged to suggest amendments that will result in a financial benefit to the employer, such as a reduction in life-cycle costs. If anyone has examples of this particular provision being used, I would be delighted if they would let me know.

Other contractual arrangements such as partnering have contemplated continuous improvement in construction processes, measured by reference to things such as key performance indicators (KPIs). However, many sets of KPIs are drawn up in such a way that they are individually rather than collectively assessed. It is true that failure across a number of KPIs will usually be aggregated in terms of making performance deductions or triggering termination, but there is often no corresponding measure for success.

BIM raises a number of legal issues when it is used on projects. Key among these is the ownership of the model and the copyright material in it. In most cases, the party who produces copyright material retains ownership of it and grants licences to others to use that material, but where are the lines drawn in BIM? By its very nature, BIM does away with the compartmentalised structures that keep different parties apart, each having ownership of their particular section.

Of course, parties are sometimes willing to give up ownership when it relates to a problem, and that needs careful consideration in BIM situations. When operating correctly and at its highest level, BIM should be the digital equivalent of measuring twice and cutting once - mistakes should be discovered in the model and eradicated long before they reach the site, but who will be able to guarantee this?

While BIM should take us closer to zero-defect construction, parties using it will need to decide how they divide responsibility for any defects that do get through and should run a detailed risk analysis and allocation before entering into any contracts.

Michael Conroy Harris is senior legal manager at Eversheads

This article was originally published under the title Measure twice, cut once