BIM Legals – A guest post by Bethan Onions, Solicitor at Arup

Legal_Advice

With the promotion by the UK Government of BIM & Integrated Project Insurance, do we now have the right ingredients for a culture of collaboration in the UK construction industry?

Bethan Onions, November 2013

(Extract from dissertation submitted in part fulfilment of an MSc degree in Construction Law & Dispute Resolution, King’s College London)

Context

BIM as a current objective of the Government’s Construction Strategy 2011 shall be discussed before attention moves to the legal implications of BIM on projects. Commercial issues shall be reviewed and the implications of BIM with respect to collaboration in the industry shall be considered.

Background to BIM

In the past, there was a clear division of roles and responsibilities on projects. The designer and contractor roles developed separately. Once a designer had completed its design, it would then pass approximate information over to the contractor. The contractor would work out from the conditions on site, how components would fit together and how the project would be constructed. The industry was centred on craft-based production involving labour intensive activities. It is not surprising that this is the way in which the industry has developed given the unique, one-off nature of buildings. It is rare to find more than one building of the same type being constructed. Repetition is generally limited to house building and public works such as train stations, hospitals and schools[1]. Even where a design is being repeated, it is unlikely that other factors will stay the same, specifically in relation to ground conditions. Therefore, the design and construction of each project is approached, at least to a certain extent, from scratch.

Computer aided design (“CAD”) arrived in the industry on a commercial scale in the 1970s-1980s[2]. However, whilst the advent of CAD reduced the time taken to produce designs by removing the need for repeated hand calculations, it did not fundamentally change the process of design and construction or the nature of the information provided from designer to contractor. Using two-dimensional (“2D”) drawings it is possible to create a three-dimensional (“3D”) building using one plan and two elevations i.e. three 2D drawings. The amount of information that is required to create a cube through a 2D CAD process is 4 lines and 8 coordinates multiplied by three. However, in order to create a 3D building in CAD from scratch (taking a simple cube as an example) the information required is 8 lines, 12 coordinates and 6 faces. This equates to more than three times the 2D drawing information. Therefore, it took a long time for 3D modelling to take hold in an industry where the digital technology was in its infancy.

The breakthrough in 3D modelling came with the development of software capable of producing designs in 3D.  This in turn led to the invention of ‘intelligent objects’ which made it possible, for example, to define a beam in the software which could then be easily repeated. Parametric modelling where a beam extends to fit between two columns was the next step in the development. This advancement in the technology is what has led to the concept of Building Information Modelling: the next step[3].

What is BIM?

Building information modelling is essentially the process of generating and managing an integrated digital model of an asset’s components and systems throughout its life-cycle. Whilst there is no one accepted definition of BIM[4], many sources refer to the definition provided by the National Institute of Building Sciences in the United States which defines BIM as:

“a digital representation of physical and function characteristics of a facility. As such it serves as a shared knowledge resource for information about a facility forming a reliable basis for decisions during its life-cycle from inception onward.”[5]

A BIM process typically involves:

a)      compiling information that can be shared by the team members on a construction project;

b)      three-dimensional modelling of a project but, where possible, going beyond conventional three-dimensional computer aided designs (CAD) drawings by incorporating further information such as cost and programming information;

c)      allowing shared information to be updated as the project progresses and later, during the operation of the asset (after practical completion (“PC”)).

Four levels of BIM maturity have been identified and have been adopted by the UK Government in its construction strategies[6]:

a)      Level 0 – two-dimensional drawings that may be created using a CAD system but which are shared on the project in a hard copy format;

b)      Level 1 – using CAD to create two/three-dimensional drawings adopting a standardised approach in the way data is presented across the construction team. Data is not integrated into a single tool but can be accessible to the rest of the team. Commercial data e.g. cost and programming information is also held separately;

c)      Level 2 – presents data in specifically developed BIM programmes which can also incorporate commercial and other data. However, there is not one single model for all information developed by the project team members. These BIM files are sometimes referred to as a ‘federated’ model’ as each team member has their own model;

d)     Level 3 – all data is held on an integrated, web-based platform accessed by the team. It can include cost, programme and life-cycle asset management information.

In addition to the levels above, reference is often made in the industry to the ‘dimensions’ of BIM:

a)      2D – simple two-dimensional drawings

b)      3D – three-dimensional CAD models

c)      4D – three-dimensional CAD models plus a data base that includes information about programming

d)     5D – incorporates the relevant cost information into the 4D stage

e)      6D – incorporates the information for facilities management beyond completion.

What does this mean for collaboration in the context of the question set out at the beginning of this post? The development of BIM (especially to Level 3) means that everyone on the project is able to work using the same data. Issues can be identified and resolved or mitigated at an early stage before construction begins. Given the benefits, in respect of cost, of clash detection and problem-solving before the project goes on site,  BIM provides a strong framework for the project team to work in a collaborative manner throughout the project life-cycle (starting at project inception) and producing a successful end product.

The Government’s Construction Strategy Objectives

As discussed above, the Government has published three strategies for the construction industry. These set out various objectives in respect of the industry including a focus on lean production and soft landings. A key part of the 2011 strategy is a focus on the use of BIM on projects that are publicly and centrally procured.

The Government’s 2011 Construction Strategy discusses BIM in a positive light:

“At the industry’s leading edge, there are companies which have the capability of working in a fully collaborative 3D environment, so that all of those involved in a project are working on a shared platform with reduced costs and less opportunity for error; but construction generally has lagged behind other industries in the adoption of the full potential offered by digital technology”[8] [emphasis added]

In its strategy, the Government required fully collaborative 3D/Level 2 BIM (which includes electronic project and asset information) by 2016 on those projects it procures centrally[9]. The 2012 review of the 2011 strategy states that the UK is moving into a position to become a world leader in the adoption of BIM. This has included investment by the industry in BIM technology. Further, the pilot projects which have used BIM were expected to demonstrate significant gains in process efficiency[10].

In addition to the general requirement that government-procured projects require use of 3D BIM, industry bodies have engaged with the Government’s agenda and assisted in the development of associated information and guidance. For example, the Royal Institute of British Architects (‘RIBA’) has now issued its updated Plan of Work, developed in collaboration with the Construction Industry Council (‘CIC’)[11].

Moreover, Publicly Available Standards (‘PAS’) including PAS 1192:2[12] and related British Standard (‘BS’) BS1192:2007[13] have been developed (also in conjunction with the CIC BIM task force) and are marketed as “the only tried and tested standards that support the construction BIM strategy to achieve Level 2 compliance and the desired reduction in CAPEX outturn cost.”[14] The CIC has now published its protocol for use alongside the PAS and incorporation into the relevant appointments. The involvement of industry in this way demonstrates that it is following the lead set out by Government in its strategies.  Further, an additional PAS (1192-3) in draft form, is currently available for comment, to provide guidance on the use of the Asset Information Model.

The Garrick House Network (‘GHN’)[15] has analysed the relevant developments since the publication of the 2011 strategy with regards to BIM as follows:

Recommendation Steps Taken as Part of Construction Strategy Related Developments
Building Information Modelling BIM Task Group established and supervised publication of:-          CIC BIM Protocol;-          BIM PI insurance guide;

–          Information management scope of services; and

–          PAS1192

CIC BIM protocol is already being used on a number of projects.

BIM is used by the government on 11 trial projects, including £15m Cookham Wood prison development.

MOJ to use BIM on all projects by the end of 2013NBS National BIM Survey 2013 revealed significant growth in adoption of BIMCIOB Complex Projects Contracts published April 2013 included BIM provisionsRIBA Plan of Work 2013 published in May 2013 included a reconfigured design process to reflect the impact of BIM[16]

Construction 2025[17] has, as one of its aims, a commitment from the Government and industry to achieve the objectives set out in the 2011 strategy as early as the autumn of 2013. Further, the 2025 strategy also has as an aim that Government and industry will move to Level 3 BIM[18] between 2016 and 2025 in order to ‘fully realise BIM’s potential’[19].  Consequently, it can be seen that the Government is pushing industry towards a more collaborative environment.

Legal Implications of BIM

Interoperability

There may be issues around interoperability with a federated system of BIM models on any given project. Theoretically, the programmes in which the models are created should be able to communicate with one another. However, with the status of the current technology this is not yet possible in a seamless manner as was the case with CAD[21]. Therefore, the different programmes that organisations use, have different levels of capability in communicating between each other.

Whilst efforts continue to ensure that this is not a concern, where this fails there can be negative implications. In the American case of Mortenson v Timberline[22] a contractor’s bid was $2m too low due to it bidding on details arising from a software error. The court[23] in this case held that the terms and conditions between the parties included the terms of a licence that was included with the software. The licence which contained terms limiting the software developer’s liability was therefore enforceable and the contractor was unable to recover its losses from the developer.

Ashcraft argues this case implies that where there are errors in the BIM software itself which cause economic loss to the user, the user has no realistic remedy[24]. Furthermore, he also notes that the user’s liability to other parties may not be similarly limited which may lead to a lacuna in the liability position of the parties if software errors lead to design/workmanship errors in the deliverables.

This may not be such a concern in England and Wales given the different approach to limiting liability that is taken in this jurisdiction. The provisions of the Unfair Contract Terms Act 1977 (“UCTA 1977”) and the Unfair Terms in Consumer Contracts Regulations 1999 (“UTCC 1999”) may protect software users in such circumstances. Nevertheless, it is necessary for those using such software to understand the terms under which they are operating. This is especially the case given the fact that they are most likely to be operating as a commercial organisation. The courts in England and Wales are still amenable to enforcing such caps on liability provided the UCTA 1977 and UTCC 1999 reasonableness tests are passed[25].

It can be argued that until interoperability issues are addressed, the scope for collaboration on projects is reduced. However, there are a number of ways of addressing this:

a)      require at the earliest stage that all parties use the same software or a programme that is compatible with that particular software;

b)      use the BS1192 2007 and PAS 1192:2 to set up clear lines of communication on the project and clear, unambiguous levels of detail (“LOD”) which refer back to a detailed employers information requirements (“EIR”) document; and

c)      use a comprehensive matrix of responsibilities[26].

Data Misuse

Ashcraft highlights that the way in which the model is used can have legal implications if it used for purposes for which it was not intended[27]. However, this does not appear to be different from the position on traditional projects where models are not used. The standard forms of contract in the UK have developed provisions for dealing with this issue, for example the JCT:

“The Contractor shall not be liable for any use by the Employer of any of the Contract Documents for any purpose other than that for which they were prepared.”[28]

As above, provided the team is clear on the LOD that each member is providing at any particular point in the process, this should allay fears on this issue. Therefore, it is critical that guidance is clear on what reliance can be placed on the LOD. This should include both what it will and will not cover. For example, it is envisaged that PAS 1192:2 2013[29] will be used in conjunction with the CIC Protocol[30]. As these are currently drafted, the LOD descriptions are not as clear as they might be when compared with the levels of detail drafted by the American Institute of Architecture (the “AIA”): AIA E203[31] which may lead to difficulties on projects where there is ambiguity. With the relevant documents in their current state this will need to be considered on a project-by-project basis by clients who may wish to augment the LOD for building elements in order to make relevant decisions at an appropriate stage.   Modifying the definition of LOD’s however, is an approach that goes against the grain set out by Latham, Egan and the Construction Strategies for a move towards standardisation and a culture of transparency and collaboration.

Intellectual Property

Legal issues with regards to intellectual property rights (“IPR”) in the model appear the same as those that exist in respect of other deliverables created on the project. However, Ashcraft states that such issues are intensified in respect of BIM given the sheer amount of information required to be produced in the models[32]. This can be dealt with at a contract level by clearly stating the parameters of who owns what on the project in respect of IPR as well as the virtual model. This is likely to follow ‘traditional’ lines with the client more requiring ownership where the model is to be used for asset management. Once again, it is clear that communication is fundamental. Where a client has a blanket policy of retaining all IPR rights, this is likely to reduce innovation on the project. As new ideas are developed they will be taken ‘off-project’ in order that parties do not lose their know-how/IPR.

Where IPR has been considered properly and the rationale for the assignment or otherwise has been set out, it is likely to provide the basis for a more collaborative, innovative project.

Loss of Data

Where a party is hosting information in respect of a model, it should take steps to protect against loss of the relevant data. Otherwise, it may be found liable for such loss. Therefore, the host should arrange adequate insurance to provide cover in the event of data loss[33]. This will require discussions between parties as to who will host the model. A key consideration is ownership in the event of a dispute. Therefore, there may be a tendency to an ‘independent’ party hosting the information in order to reduce the risk of having access blocked in the event of a dispute.  Access to information should be discussed at the outset and obligations set out in the contract in order to improve the culture of collaboration on the project and reduce protective practices.

However, as noted above, this does not represent a radically different approach from work carried out in a ‘non-BIM’ environment.

Legal Status of the Model

Many commentators have discussed the legal status of the model[34]. For example, is the model a contract document? Some documents see it as such[35]. However, anecdotally, it is clear that many contractors are not as yet able to construct from the models that are being produced and therefore do not see them as contract documents[36].

In the United States this has specific implications given the Spearin doctrine[37]. It is well understood in the common law jurisdictions of the United States and England and Wales that designers owe a duty of reasonable skill and care in the performance of their services and are only liable if and to the extent that they breach such standard. However, the Spearin doctrine goes further by stating that plans and specifications provided on a project are warranted by the owner/client to be free from defects[38], effectively introducing a fitness for purpose obligation. Therefore, where a contractor can demonstrate that it has built the project in accordance with the design it will not be held liable if defects are later found which result from the design. This introduces a potential liability for the designer on to whom the owner/client is likely to pass any claim.

However, it is not yet clear whether this is applicable to BIM[39] and it is not applicable to England and Wales but does go to demonstrate why there is reluctance on the part of legal professionals to wholeheartedly embrace BIM[40].

Therefore, clarity as to the status of the model in the contract is key: who can rely on it and to what extent? As stated by Ashcraft, the model can be used but not relied upon by the recipients but setting up a project in such a way comprehensively undermines the model’s utility[41] and renders the any statements or obligations in respect of collaboration meaningless.

Standard of Care

Hurtado and O’Connor have stated that where modelling is a collaborative process involving many members of the team/supply chain, such a process “raises truly formidable … standard of care questions for which there are few, if any, analogues in the law.”[42] Further, Ashcraft states that the introduction of BIM will have the effect of changing the standard of care for design as CAD did before it. The existence of clash detection, for example, will make it unacceptable for physical conflicts to arise, and be resolved, on site[43] thus changing the test for reasonable skill and care.

However, given that the industry has adapted to the use of CAD in a relatively straightforward manner, there is nothing to suggest the same cannot be said for BIM. Whilst there are no reported cases on BIM, much has been made in the industry media of a dispute which was eventually settled in 2011 in the United States. However, based on the available facts of the case, it does appear that whether BIM was used or not on the particular project would have made little difference to the existence and nature of the dispute.[44] The fundamental question was one of sequencing which may have arisen with or without BIM being used on the project.

Who is the Designer?

An issue identified by commentators is that software used in BIM can react to changes that are made to the model[45]. There may be some information in the model that nobody on the team has in fact created and, unless a BIM coordinator of some description is appointed, no one will have responsibility for checking it. This was an issue that was highlighted in Frankfort v Kistler[46] where a software programme gave ‘advice’ about the law. It was held that this ‘constituted unauthorised practice of law’[47].

One can extrapolate the lessons for BIM where it may be the case that the software ‘advises’ on, for example, the Building Regulations 2010. However, given that the BIM software will most likely be used by construction industry professionals, the implications may not be as far reaching[48]. Further, the position on this point has not been tested in English and Welsh law and is less of an issue in respect of the ‘engineer of record’ role which is of particular concern in the United States.

Ownership and Preservation of Data

Ashcraft discusses the implications of loss or damage to data and suggests insurance may be a solution in terms of recovering/replacing data[49]. However, he also notes that the insurance industry does not necessarily provide the answer in terms of the traditional polices of professional indemnity and other insurances available to the design team. The possible solutions that are being developed by the insurance industry in the UK in respect of this and other BIM issues. It must be noted that preservation of data is not a problem limited to BIM, other industries such as the financial industries must face the same problems and there is an opportunity to learn from them.

Non-Legal Considerations

The section above reviewed some of the legal issues facing BIM and the industry. This section will now consider some of the more commercial and other issues that may affect the endorsement of BIM in the industry and its role in creating a culture of collaboration.

Economics are a key driver in the adoption or otherwise of BIM by the industry. As described by commentators including Hurtado and O’Connor[50], BIM brings with it many benefits for the project and the team as a whole. This includes reduced transaction costs with everyone working from the same data and less opportunity for error[51]. In addition, the Government Construction Strategy 2011 identified the following benefits of BIM from a commercial and technical perspective:

a)      implications of alternative design proposals can be evaluated with comparative ease;

b)      projects are modelled in three dimensions (eliminating coordination errors and subsequent expensive changes);

c)      design data can be fed direct to machine tools, creating a link between design and manufacture and eliminating unnecessary intermediaries; and

d)     there is a proper basis for asset management subsequent to construction[52].

The process of creating a virtual prototype of a building which allows any aspect of its performance to be simulated and assessed ahead of its construction is becoming more and more relevant given the push for cost effective, sustainable buildings[53]. This can all be boiled down into either cost savings for the employer/end user and maximised profits for the project team.

However, it is important to understand who the beneficiary of the use of BIM on projects might be. Ashcraft states that the designers may be the ones that bear the cost of implementing BIM whilst not initially seeing the immediate benefits from their own commercial points of view[54]. This needs to be analysed.  BIM can be described as a process of adding material to the information that is handed over to the construction team. This has a cost to the designer in terms of the cost of the software itself and the cost of the additional time it takes to prepare the design. Therefore, in order for a team to use BIM there has to be either a financial benefit or a contractual obligation to do so.

In respect of BIM Level 2, there can be a self-benefit to the designer provided BIM is used routinely. It results in a more skilled workforce, a more efficient design process and the ability to adopt standards that are widely used in the industry. In the context of publicly procured projects a capability in respect of BIM will mean the ability to win more projects[55].

Therefore, there is both a financial benefit and contractual obligation in respect of BIM Level 2 which should have the result that more organisations will embrace it.

With regards to BIM Level 3, the development of the industry is further behind and it is not something that has been used on projects where information is publicly available. Nevertheless, it is possible to see that the beneficiaries of Level 3 may not be those who use it in their work but the end user who is often not the employer on the project. Therefore, it will be more difficult to persuade project teams to aim for BIM Level 3 where there is no direct benefit to the design process, a financial burden in doing so and no contractual or other obligation. BIM Level 3 requires more upfront investment from either the employer or the team, for example in the development of ‘objects’ which have the requisite level of information attached to them.

This is not necessarily interesting to employer developers who are seeking higher profit margins and are not concerned with the actual running of the asset. This is where the construction industry departs, for example, from the motor industry where there is more funding available for research and development.

BIM appears to be most appropriate for design and build projects where the contractor takes responsibility for the quality of the final asset and the risk of commercial performance. Given that a contractor can be described as a repeat client, it is possible to see the benefit of investing in developing its BIM capability. This will have the knock-on effect of making design for manufacture and assembly (“DfMA”) a more attainable goal. DfMA has been adopted by a number of contractors such as Laing O’Rourke[56] and Skanska[57] among others who have identified that time and cost savings can be made by operating in this way. There is a clear movement by some in the industry away from craft to lean production[58] which has underlying it a more collaborative culture as it requires engagement of the whole supply chain at an early stage in order to achieve a more efficient industry[59].

There is a question as to why BIM has not been adopted more widely by the construction industry. Some reasons for this may be:

a)      demand in respect of DfMA is arguably lower in construction than other more consumer-product driven industries;

b)      lower capital for investment in research and development unless driven by individual organisations e.g. Laing O’Rourke;

c)      SMEs make up a significant number of organisations in the industry which generally will lead to a lower rate of uptake of concepts such as BIM; and

d)     the requirement for standardisation which takes time to filter down the supply chain.

Finally, brief mention should be made at this point about the psychology of change in respect of the drivers for and against BIM. Research has shown that ‘in our era of electronic communications, we’ve come to expect that important innovations will spread quickly… but there is [a] long list of vital innovations that have failed to catch on. The puzzle is why.”[60]

Nevertheless, this is being addressed in the UK through the requirement for all of centrally procured projects to be BIM enabled up to Level 2 by 2016. Further, the outcomes of the demonstration projects and the successes around BIM are being disseminated to educate the industry of the benefits of a BIM-enabled approach.

 

BIM as a collaborative tool

As discussed above, BIM can enable collaboration on projects. The potential for all key members in the supply chain to design in a common data environment reflects the way in which many multi-disciplinary firms already work. However, it is clear that a number of hindrances have been identified by the legal profession in particular as set out above. The analysis (especially in respect of BIM Level 2), demonstrates that there may be either, a disconnect between the legal profession and those using BIM on projects which leads to an

overestimation of the level of risk, or, there is an element of ‘job creation’ by the lawyers.

Creating an impression of risk in using BIM may drive more to take advice from their lawyers on this risk[61]. That is not to say that the legal issues should be dismissed but that they need to be considered from a reasoned, practical and commercial perspective and dealt with through the use of the relevant tools such as a well-drafted contract rather than the refusal to use BIM because of perceived risks.

The Construction Strategy 2011 objective of reaching BIM Level 2 on all publicly procured projects by 2016 is achievable[62]. However, it can be argued that this is because it does not represent great advancement on the status quo. The technology may have developed but the underlying approaches and concepts remain similar. Therefore, BIM Level 2 as a collaborative tool is less powerful when considered in such a context.

Conversely, BIM Level 3 represents a much more collaborative tool. It requires that all data is held on an integrated, web-based platform accessed by the team which includes cost, programme and lifecycle asset management information. The design of the project is carried out in a common data environment which requires the team to collaborate and communicate in order for the project to be successful. Whilst the technology is not quite developed enough at this time, it is clear that BIM is on its way to becoming a process allowing the co-operative design and delivery of a fully co-ordinated, data rich asset model in a more efficient way in the UK especially when one considers the requirement of Construction 2025.

In conclusion, it has been demonstrated that BIM has the capacity for enabling a culture of collaboration on projects. However, it still requires industry (including clients) to understand and embrace it as a concept[63]. As discussed above, BIM Level 2 is not a huge development on the status quo with respect to CAD whereas BIM Level 3 represents a great opportunity for enabling collaboration.

Does the promotion by Government of BIM mean a greater probability of a culture of collaboration in the industry? It has to be remembered that the current Construction Strategies require publicly procured projects to be at BIM Level 2 (not 3) by 2016. Given the conclusion set out in the paragraph above this appears that the industry is not quite at the stage of a culture of collaboration in respect of BIM’s role. However, the fact that participation has been so successful that Construction 2025 recognises that the requirement will be met well before 2016 leads one to hope that the next step will include obligations around BIM Level 3 and thus a stronger culture of collaboration in the industry in the not too distant future.

Notwithstanding the conclusions above, it is clear that other ingredients are required for a culture of collaboration to exist. The experience of integrated project delivery in the US is that collaboration was made more difficult because the associated toolkit for project delivery was based on the traditional approach to projects. Therefore, the contracts that governed the projects did not allow for collaboration and encouraged a traditional, more insular approach. Whilst the UK has the benefit of central government dictating use of BIM from the top which is reflected in part by the private sector, it is clear that more is needed.

Bethan

Bethan Onions, Solicitor, Arup

Bethan joined Arup’s legal team in 2008. She trained and qualified as a solicitor with the team which focusses on all aspects of Construction and Engineering Law. Her practice covers both contentious and non-contentious matters. She has experience of negotiating different types of appointments from small consultancy commissions to major projects which involve complex joint venture arrangements. Her contentious practice includes advising on all types of fee claims as well as professional negligence claims.

Bethan recently completed the MSc in Construction Law and Dispute Resolution at Kings College London where her dissertation question was based on the use of Integrated Project Insurance and Building Information Modelling in order to encourage collaboration on projects. As a result, she is now the BIM specialist in the Arup legal team and represents the team on the Arup Global BIM Taskforce. Along with others she was involved in providing feedback to the Government’s BIM Task Group on PAS1192-2. At Arup she provides advice and training to the business on the legal implications of BIM.

Bethan is a keen supporter of BIM and the benefits it can bring in respect of collaboration and believes that lawyers have an important role to play in the success of BIM enabled projects.

http://uk.linkedin.com/in/bethanonions/


[1] Although in the UK even this is not always the case. See, for example, the Building Schools for the Future programme.

[2] (David E. Weisberg, 2008)

[3] It is important to note here that BIM is not just about design as will be discussed later in the Chapter.

[4] (Ashcraft, 2009; Mcadam, 2010)

[5] (National Institute Of Building Sciences, n.d.)

[6] See for example (Cabinet Office, 2011)

[7] © Bew and Richards

[8] (Cabinet Office, 2011, p. 54)

[9] (Cabinet Office, 2011, p. 14)

[10] (Cabinet Office, 2012a, p. 13)

[11] (Royal Institute of British Architects, n.d.)

[12] Specification for information management for the capital/delivery phase of construction projects using Building Information Modelling.

[13] Collaborative production of architectural, engineering and construction information code of practice.

[14] (BIM Task Group, n.d.)

[15] A business network for in-house legal advisers working in consulting/construction.

[16] (Croft, 2013, p. 2)

[17] (Department for Business Innovation and Skills, 2013)

[18] All data held on an integrated, web-based programme accessed by the team which can include cost, programme and lifecycle asset management information.

[19] (Department for Business Innovation and Skills, 2013)

[20] (Ashcraft, 2009; Hurtado, 2009; Mcadam, 2010)

[21] (Ashcraft, 2009, p. 13)

[22] M A Mortenson Company Inc. v Timberline Software Corporation, 140 Wn.2d 568; 998 P.2d 305 (2000)

[23] Washington Supreme Court

[24] (Ashcraft, 2009, p. 14)

[25] As recently held in Elvanite Full Circle Limited v AMEC Earth and Environmental (UK) Limited [2013] EWHC 1191. See also Trustees of Ampleforth Abbey Trust v Turner & Townsend Management Ltd [2012] EWHC 2137 (TCC)

[26] These and other lessons have been identified on the Early Adopter Project – HMYOI Cookham Wood see (Ministry of Justice – BIM Task Group, 2013)

[27] (Ashcraft, 2009, p. 14)

[28] (“SBC/Q 2011 Standard Building Contract with Quantities 2011,” 2011)

[29] (British Standards Institute 2013-a)

[30] (Construction Industry Council, 2013)

[31] (American Institute of Architects, 2013) Whilst anecdotally it has been argued that the E302 document is more prescriptive than it might need to be, it forms the basis of good practice in defining LODs.

[32] (Ashcraft, 2009, pp. 14–15)

[33] (Ashcraft, 2009, p. 15)

[34] (Ashcraft, 2009; Hurtado, 2009; Mcadam, 2010)

[35] See Appendix A of the American Institute of Steel Construction’s (AISC) Code of Standard Practice for Steel Buildings and Bridges (AISC, 2005)

[36] Discussions with construction industry professionals.

[37] Derived from United States v. Spearin, 248 U.S. 132 (1918)

[38] (Henderson, 2010, p. 2)

[39] (Hurtado, 2009, p. 6)

[40] See Thorn v The Mayor and Commonality of London (1875-1876) L.R. 1 App.Cas. 120, HL; IBA v EMI and BICC (1980) 14 BLR 1 and Trebor Bassett Holdings Ltd and The Cadbury UK Partnership v ADT Fire and Security plc. [2012] EWCA Civ 1158

[41] (Ashcraft, 2009, p. 15)

[42] (Hurtado, 2009, p. 7)

[43] (Ashcraft, 2009, p. 16)

[44] See (“First ever BIM legal case in US | Magazine News | Building,” n.d.)

[45] (Ashcraft, 2009, p. 16)

[46] 477 F.3d 1117 (9th Cir2007)

[47] Frankfort Digital Services v Kistler, 477 F.3d 1117 (9th Cir2007) at 1126

[48] (Ashcraft, 2009, p. 16)

[49] (Ashcraft, 2009, p. 18)

[50] (Hurtado, 2009, p. 10)

[51] (Cabinet Office, 2011, p. 13)

[52] (Cabinet Office, 2011, p. 13)

[53] However, there are timing issues that must be addressed especially in respect of the EU procurement rules.

[54] (Ashcraft, 2009, p. 9)

[55] (BSI Standards Limited, 2013)With the introduction questions around BIM in PAS 91:2013 such as “Do you have documented policy, systems and procedures to achieve “Level 2 BIM” maturity as defined in the government’s BIM Strategy?” it will behove organisations to increase their capability in respect of BIM.

[56] (Laing O’Rourke, n.d.)

[57] (Skanska, n.d.)

[58] See (Jones, 1990)

[59] See as an example the work of Broad Sustainable Building: (Broad USA Inc., n.d.)

[60] (Gawande, 2013, p. 37)

[61] See also (Klein, 2013)

[62] This seems to have been successful given the statement set out in Construction 2025 that:

“Between 2016 and 2025 it is expected that the UK Government and industry will move to Level 3 BIM, which is deeply embedded in the wider digital economy.”

[63] BIM is not a new development and has been in use in the US for a number of years yet a culture of collaboration could hardly be described as existing in the US construction industry. See (Ashcraft, 2009)

5 responses to “BIM Legals – A guest post by Bethan Onions, Solicitor at Arup

  1. Pingback: With the promotion by the UK Government of BIM & Integrated Project Insurance, do we now have the right ingredients for a culture of collaboration in the UK construction industry? | bethanonions·

  2. Pingback: With the promotion by the UK Government of BIM & Integrated Project Insurance, do we now have the right ingredients for a culture of collaboration in the UK construction industry? | bethanonions·

  3. Pingback: With the promotion by the UK Government of BIM & Integrated Project Insurance, do we now have the right ingredients for a culture of collaboration in the UK construction industry? | bethanonions·

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  5. Pingback: Who do we want the #BIM data ‘caretakers’ to be? | a l s t u d i o·

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