Legal: BIM - it's what you do with it

Can a single case on BIM, that of Trant vs Mott MacDonald (2017), really cause one to question whether BIM solves the disputes we believed it would? Yes, of course, but it will not stop its progressive use, nor should it.

The benefits of BIM are well rehearsed. The digitalisation of information provides an effective and efficient means of collaboration for developing and co-ordinating the project design. It also provides a rich data environment for those subsequently associated with the project, in other words for post-occupancy management. 

A National Building Specification (NBS) 2017 survey shows that we are some way from full take-up of BIM. This is partly because BIM may not be appropriate for every small-scale design but also because there remain concerns. For example: the protection of intellectual property rights in 3D models, the lack of clarity regarding liabilities that can arise through the blurring of the line between designs and also between design and construction – issues not necessarily restricted to BIM. 

In adopting a BIM protocol […] it is essential to consider, among other things, whether it deals properly with […] the rights to access the model, including audit trails

The expectation is that BIM will reduce disputes because it enables clash detection – but could it avoid them entirely? In Trant vs Mott MacDonald, the employer was denied access to the model following non-payment. The defendant was ordered to permit access to the data in the BIM model which had previously been available to the claimant and others, subject to the claimant making a payment into court reflecting the invoice that had not been the subject of a payless notice. Is the type of problem encountered in Trant necessarily restricted to BIM? Is it so different from a design and build contractor denying access to paper designs?  That dispute should not have arisen if proper attention had been given to what happens when the supplier of information, who in this case holds the model, is not paid – a point previously recognised by commentators.

In the early development stages of BIM, JCT took the view that contractual relationships between employer, contractor and others need not change radically. Similarly, the USA’s ConsensusDocs 301 avoided the restructuring of contractual relationships so as to eliminate another hurdle to the take-up of BIM. The more recent King’s College report Enabling BIM through Procurement and Contracts confirms such a view in respect of Level 2. JCT had judged that the detail of BIM is best left to a protocol rather than the contract conditions; consequently, the primary requirement was the integration of a BIM protocol through the contract documents and its harmonisation with design, information and communication protocols. JCT published relevant provisions in 2011 and later incorporated these into its 2016 contract suite, as well as providing a BIM Practice Note for users so as to facilitate and encourage the use of BIM. 

BIM is not just the future but also the present. However, do not expect it to be entirely dispute-free

Although JCT contract conditions may rely upon the existence of a BIM protocol, they do not specifically require the use of the Construction Industry Council protocol – providing instead that the contract should be flexible enough to allow for any appropriate protocol to be adopted. JCT takes the view that the contract conditions must prevail should a conflict arise between the two. 

Not everyone is of the view that a separate protocol is necessary; understandably, some believe the construction contract should be inclusive. However, a standard construction contract fully addressing BIM requires widespread agreement on complex issues where contrasting opinions naturally exist. Nevertheless those issues need resolution if, following a period of consolidation at Level 2, the Government Construction Strategy 2016-2020 policy of moving towards Level 3 is to be achieved. The policy includes a period of consolidation but the transition should not be underestimated. Dassault Systèmes states that “migrating from BIM Level 2 to Level 3 is most successful as a deliberately paced progression” otherwise it might cause “a painful disruption and loss of productivity”. In this regard the use of the JCT Constructing Excellence Contract is worth considering as it maintains accepted contractual relations while facilitating integration and collaboration. JCT’s BIM working group is considering what other measures are required to continue to help contract users with the uptake and progression of BIM.

The move from a Level 2 federated model approach to the Level 3 concept of a single, fully integrated shared model held in a centralised repository raises the various concerns to a different level. Theoretically, the use of a multi-party contract at Level 3 has merit, but from a practical point of view its adoption across the full range of projects is unrealistic, certainly in the short term. The behavioural approach of participants needs to change radically – something the previously referred to case illustrates. 

The details of the BIM approach, including types of model to be created, must be incorporated into the project information at tender stage. In adopting a BIM protocol or indeed developing bespoke provision it is essential to consider, among other things, whether it deals properly with: the licensing of intellectual property, liability regarding the integrity of electronic data and specifying what reliance can be placed on the data; and the rights to access the model, including audit trails, its maintenance, security and back-up. 

BIM is not just the future but also the present. However, do not expect it to be entirely dispute-free. Its success largely depends on good practice and in properly tackling the known issues.