What to do about BIM

In simple terms, building information modelling is a 3D digital model of a facility containing information regarding its physical and functional aspects. Data can be shared between the project participants and manipulated. This versatility means BIM holds the potential to unlock efficiencies and improvements throughout the facility’s lifetime.

With multiple collaborators, creating a 3D representation from individual design contributions requires commonality in how project information is structured, co-ordinated and used. This is where a BIM protocol comes in.

Most BIM protocols are bespoke. This, though, is an industry that prefers the convenience of standard procedures and documents. One of the first of these comes from the Construction Industry Council (CIC).

In this country, BIM is often categorised into four distinctive grades (or “maturities”) of sophistication. Levels 0 and 1 are partial or non-BIM. At level 2 - the maturity at which the CIC protocol aims – BIM becomes 3D, with project participants providing their respective data through individual BIM models. Even so, software is involved to derive the full 3D model from these. The highest maturity, level 3, features a centralised, web-based 3D environment. Level 2 is where market interest currently lies, aided by the government’s pledge to have all its projects achieve this maturity by 2016.

As a tool for structuring project information, the protocol is oddly unfulfilled

Standard form protocols can help newcomers. The CIC protocol is intended to be appended to a construction contract and be legally binding. Where its provisions conflict with those of the underlying agreement, the protocol prevails (with exceptions). This is logical (its purpose is to standardise how data is provided so consistency amongst participants is essential) but parties should ensure there is no conflict with existing obligations; otherwise disputes could arise.

The protocol envisages only contractual relationships between the employer and each participant. The employer aside, there is no means for one participant to enforce against another (required for level 3). This could easily have been accomplished (through third party rights, for instance). Uncertainty over professional indemnity insurers’ receptiveness to multiparty liability may have had a hand in this.

The protocol requires the employer to appoint an information manager, a position envisaged in the government’s strategy. This can be a standalone consultant or a member of the existing team. The information manager helps set up and manage the processes and procedures for implementing BIM.

Participants are relieved from liability arising out of transmission, copying or use or modification to their material. The protocol also addresses intellectual property rights - critical in BIM - to the extent not already dealt with in the agreement, with each participant granting the employer and other participants a licence to use its intellectual property. Given that employers expect long-term access to BIM models, it is of concern that the licence is not expressed to be perpetual or irrevocable, neither is there any right to sub-licence it to tenants, purchasers, operators or funders (although this should be covered in the agreement, anyway).

The protocol is drafted on the basis that one party is the employer and the other its consultant or contractor. On a design and build project, this could inadvertently lead to protocols between the developer and its contractor and retained consultants sitting alongside identical ones between the contractor and novated consultants. This could be messy. The guidance notes acknowledge this but, curiously, propose no solution.

While the protocol’s efforts in addressing BIM’s legal issues, which are often misunderstood and underestimated, are estimable, as a tool for structuring project information it’s oddly unfulfilled. The most obvious issue is the absence of any criteria for model production or levels of detail – what many consider to be the essence of a BIM protocol. Instead, the document contains appendices where these and other technical details can be inserted. What we are left with, essentially, is a legal platform for using BIM – a protocol for a BIM protocol.

Francis Ho is a senior associate at Olswang