Building information modelling: the UK legal context

• Author: Brodie McAdam
• Position: University of Salford, Salford, UK

1. Introduction

This paper considers the legal ramifications of building information modelling¹ building information modelling (BIM) and proposes a route for future research to improve legal outcomes. The method adopted is first to consider the literature in order to define the terms of study; then to draw out from the literature features of BIM procurement which may prove problematic in legal terms; consideration will then be given to two US-based initiatives for improving the legal aspects of BIM, which will be problematised by reference to the literature, before considering a potential way forward in the UK for legally effective BIM procurement.

2. Definition of terms

2. 1 What is BIM

van Nederveen et al. (2009) propound the following definition of BIM:

[…] a model of information about a building (or building project) that comprises complete and sufficient information to support all lifecycle processes and which can be interpreted directly by computer applications. It comprises information about the building itself as well as its components, and comprises information about properties such as function, shape, material and processes for the building life cycle (p. 1).

A more concise definition is offered as part of the US National Building Information Modelling Standard (NBIMS) in terms that a BIM is “a digital representation of physical and functional characteristics of a facility” ( National Institute of Building Sciences (NIBS), 2007, p. 23 ).

van Nederveen approaches BIM from a theoretical standpoint. What, in a perfect world, should BIM be? It should be a single, computerised representation of a building, in which each fact is expressed only once, thereby avoiding the risks of inconsistency inherent in systems which accommodate data duplication. For van Nederveen (2009, pp. 9-10) “any solution that allows that the same information is stored in multiple places is fundamentally wrong”. In that perfect world, a single, virtual model would represent all elements of a building or project, down to the finest detail. The model could generate accurate costings, fabrication drawings for any trade, and would permit simple identification of element clashes.

Such a utopian model is, however, rarely, if ever, achieved in practice. Instead the “BIM” consists more usually of a federation of virtual models, each addressing discrete elements of the construction process, and in these cases, interoperability – the facility for one BIM to interact faithfully with another BIM – becomes ever more important. There are certain standards in place to try and promote faithful interoperability, for example, ISO 10303, or STEP – the “Standard for the Exchange of Product model data” – however, these are not universally adopted, and problems remain with the interface between different federated BIMs, and the fact that federation equates to duplication of data and potential for inconsistency and error (van Nederveen, 2009).

The US NBIMS ( NIBS, 2007 ) is a conceptual model which defines what information must pass between stakeholders on a BIM procured project, rather than defining how that process should occur ( Suermann and Issa, 2009 ). This reflects the fact that to leverage the full benefits from BIM technology requires a paradigmatic shift in approach. Though the construction industry underwent a minor revolution a few years ago with the introduction of computer-aided design (CAD), implementation of CAD did not radically alter the way work was done, it simply speeded up its delivery. The focus with CAD was on format and output, whereas with BIM the focus needs to be on open information and workflows ( Livingston, 2007 cited in Suermann and Issa, 2009, p. 139 ).

To this end a feature of NBIMS is a rating system, the Interactive Capability Maturity Model, or I-CMM ( NIBS, 2007 ), which permits any BIM project to be rated on grounds of interoperability. Lower scores indicate projects where BIM is in fact being used as an enhanced CAD system, whereas higher scores indicate true interoperability between stakeholders and paradigm shift. Suermann and Issa (2009) indicate that currently the highest I-CMM scores relate to the initial design and construction phase, with much lower scoring occurring in relation to the lifecycle aspects of the built environment.

3. Commercial, technical and legal issues

As outlined above, it is a feature of idealised BIM implementation that there is a collaborative approach to design and delivery embraced by key stakeholders – contractors, engineers, architects, employers. “The design” is not whatever the latest issue drawings say, but whatever the BIM currently says, and what it actually says may depend not just on input from the “designers” but from contractors and/or the employer, and on whether it is handling data correctly or not.

A number of legal commentators have reflected on the legal, technical and commercial implications that BIM procurement raises. Those which are commented on most regularly are outlined in the sections which follow.

3. 1 Process

Hurtado and O'Connor (2008) highlight aspects of BIM implementation which need to be addressed regarding the process of implementation. Who is required to produce what from the BIM, and when? Who is allowed to amend the BIM? How are the contractual structures to be implemented to facilitate the BIM process

Contracts are historically bipartite agreements. BIM is a collaborative process. There is an immediate conflict between these two conceptions, and one which needs to be addressed. Possible solutions are discussed later in this paper.

3. 2 Interoperability

On a pragmatic level, leaving aside the sunny uplands of van Nederveen's perfect BIM, how will the BIMs interact? ( Hurtado and O'Connor, 2009 ). Will all participants be expected to use the same commercial BIM product? If not, how robust and faithful will be the interoperability of different BIMs? And how reliable will the software itself be? Ashcraft (2009) cites one example where a bid based on BIM produced data were $1.95 m low owing to software flaws, but the software supplier's liability was limited to the software acquisition cost owing to a limitation of liability clause in the supply agreement.

3. 3 Use of the model

The intended use of the model(s) can also raise legal issues. Ashcraft (2009) points out that a BIM which resolves to a definition fine enough to accommodate steelwork tolerances, may not be adequate for installation of curtain walling. Olatunji and Sher (2009) confirm that BIMs could be used to generate estimating information, but only if the requisite elemental cost data has already been inputted accurately and early enough.

3. 4 Status of the model

There is much discussion of the extent to which the BIM or one of the BIMs could stand as a contract document ( Hurtado and O'Connor, 2008 ; Ashcraft, 2009 ; Haynes, 2009 ). This prospect is catered for by Appendix A of the American Institute of Steel Construction's (AISC) Code of Standard Practice for Steel Buildings and Bridges ( AISC, 2005, p. 65 ), although no data as to the adoption of this Appendix has been located during the preparation of this paper. Practical problems with such a solution are identified by the foregoing authors, not least the tendency for public authorities to require 2D, often paper-borne, representations of designs for checking conformity with planning and building regulations. Moreover, Hurtado and O'Connor (2008) and Ashcraft (2009) both flag up the potential for ambiguity and complexity if the “contract” documents are 2D, and yet the project is constructed in accordance with the virtual, collaboratively produced BIM design.

3. 5 Cost of BIM process

Ashcraft (2009) notes that without a change in practices the immediate adopter – the designer – could bear the cost of BIM implementation without reaping the rewards.

3. 6 Design liability

In the US context, Haynes (2009) flags up the potential impact of BIM procurement on one of the US contractor's long established protections. In America the Spearin² doctrine relates to an employer's implied warranty that plans and specifications are adequate and sufficient for the purpose supplied. The doctrine cannot be substantially ousted even by express words requiring the contractor to examine the site, and to check the plans ( Bruner and O'Connor, 2010, Section 3, p. 27 ). Whereas the principle may be limited primarily to situations where the employer is providing design information (e.g. typically in a traditional procurement setting), it is nonetheless substantially different from the position in England and Wales, where the common law is happy to load the contractor with risk³ albeit being also more amenable to contractual moderation.

This is not, however, to down play the potential significance of BIM collaborator participation in design development even in the English and Welsh setting. As in the US the principle of privity of contract largely limits contractual liability to bi-partite, consensual arrangements. In addition, in tort the “standard position” has been, since the House of Lords decisions in D & F Estates Ltd v Church Commissioners for England⁴ and Murphy v...