A collaborative design and information management tool, building information modelling (BIM) can streamline the processes involved in complex developments, and has been credited as a contributing factor in the success of projects such as the Midfield Terminal Complex at Abu Dhabi Airport.
The aim of BIM is to provide a platform on which the project team can have available all of the information for a building in a 3D model, or even up to 5D. This helps to drive cost and time efficiencies.
The latest versions of BIM provide data beyond design information. For example, it delivers access to information about where components were sourced, how much they cost, and who will be undertaking the fitting.
BIM provides an audit trail and allows project managers and others in the building supply chain to quickly gain an understanding of the costs and designs involved in every aspect of the build. This will then feed into lifecycle performance and form part of the operation and maintenance manuals on handover. However, the use of BIM creates a number of questions surrounding legal issues like the ownership of data, intellectual property (IP) rights, and cybersecurity.
The premise of BIM revolves around collaboration of the project parties and centralisation of project data, which allow contractors to resolve design issues and obtain approvals efficiently. But this centralisation can cause issues if parties that are reliant on the data are denied access.
In a recent case in the English Technology and Construction Court, Trant Engineering was engaged by the Ministry of Defence for the $72m Mid Atlantic Power project in the Falkland Islands. Mott MacDonald was appointed as design consultant and BIM coordinator. Mott MacDonald’s responsibilities included controlling access to the shared data platform. Following a payment dispute, Mott MacDonald suspended its services and withdrew Trant’s access to the platform.
Although both parties disputed the existence of a contract between them, the court determined that Trant should have access to the project data. The judgment noted that without such access, Trant would lose a year’s progress on its works and that its likely losses would substantially exceed any cap on damages it could recover from Mott MacDonald.
The Trant case highlights the critical importance of the coordinator’s role in BIM-enabled projects in controlling access to all project data. In the Trant case, the availability of injunctive relief from the English courts helped to avoid substantial losses for the engineering company. Trant successfully argued that damages were not an adequate remedy because of the impact of the delay to the project for other stakeholders.
Injunctions, however, are not a commonly available remedy in the Middle East, and revocation of access could have far-reaching consequences for the project and its participants. It is, therefore, vital to assess which party is best placed to hold the role of BIM coordinator, and for all parties to consider how they will mitigate the risk of being denied access at any point.
The provision of data contained within the BIM model is wide-ranging, and contributions come from a variety of participants. Others will then be relying on this model to design their own works. How this works in terms of IP rights, licences, and what recourse is available if data is relied on and showed to be wrong, are issues that need to be addressed as the use of BIM develops.
In most projects, ownership of the BIM model will be retained by the building owner, while a number of separate entities will be required to input data into a single integrated model, resulting in the transfer of data to another party’s proprietary system.
Participants in the design will be required to give up more intellectual property on a BIM project than they are traditionally used to. The terms of any assignment or IP rights licensing will, therefore, need to be considered carefully.
In the UK, an industry-recognised protocol is often referenced and incorporated into contracts. This sets out the practical issues surrounding development and delivery of the model. This also requires consideration. For example, will the protocol take precedence over the contract terms, or will it start to erode some of the more onerous contractual provisions related to design obligations?
The protocol further provides that the employer’s representative can grant the employer a non-exclusive licence to transmit, copy, and use the material, and any proprietary work it contains, for purposes related to the project.
This raises a number of issues of ownership and control of material or design in instances when, for example, the sub-contractor that produced the design is terminated, while the rights to its design remain vested with the employer’s representative.
Despite these issues, however, BIM is an exciting way of better managing construction projects and is, in one form or another, here to stay. The pace of development and uptake for such systems is moving fast, and there is a danger of users not thinking through the legal implications fully.
In the construction industry, most contracts are bipartite agreements. BIM has the potential to substantially alter the relationships between parties and blend their roles and responsibilities. Risks will need to be allocated rationally, based on the benefits a party will be receiving from BIM, the ability of the party to control the risks, and the ability to absorb risks through insurance or some other means.
Clyde & Co anticipates that collaborative contracts will become more appropriate where IP rights are defined and allocated through undertakings or licences.
In addition, parties need to consider payment mechanisms, to reflect the fact that BIM projects will become front-loaded. The contract will have to define the status of the BIM model and deal with post-handover matters, such as lifecycle management and data capture.