Central to the introduction of BIM level 2 will be a protocol that ensures that everyone knows what they can expect from the other parties on the project

Simon Lewis

As is well known, the government wants the majority of its service providers to be using 3D Building Information Modelling (BIM) to what is known as level 2 by 2016. Level 2 requires the presentation of data in specific, separate databases integrated by using proprietary interfaces, or bespoke “middleware” by a BIM co-ordinator. Commercial data is held separately. Level 3 envisages a wholly integrated model accessed by all members of the project team. That is some way off yet.

There have been a fair number of articles written by lawyers about the legal implications of BIM. Generally, BIM at level 2 does not introduce anything particularly new but does focus attention on the need to clarify design input, limitations on liability and intellectual property and model ownership issues. Many of these issues are a feature of the level 2 stage, which is characterised by a ring-fencing of each party’s legal liabilities and obligations.

What is most important from a practical perspective at this point is a clear contractual framework to which all parties can sign up, hopefully at the earliest opportunity, which regulates the information flow between the parties. Central to this is the BIM protocol, which sets out who does what and when.
Other jurisdictions, such as the United States and Australia, are further ahead than the UK in this regard, although over the course of this year we have seen drafts produced by both the Chartered Institute of Building and the Construction Industry Council which are beginning to provide some indication of what a BIM protocol will look like.

There are still creases to be ironed out such as where the protocol will sit in the contract hierarchy (somewhere fairly close to the top, I expect)

The BIM protocol produced by the American Institute of Architects divides the design and construction process into levels of development (LODs) and defines who does what at which stage. This results in a table which can be used to cross refer the parties’ obligations and liabilities at any particular point in the project. The tabular approach is going to be the way that things will develop, allied either with cross-indemnities in relation to consequential losses or the express limitation of a party’s liability to the extent of their contribution to the model at any given LOD. The CIOB draft contract for complex projects adopts a very similar approach, as does the CIC draft BIM protocol.

In relation to intellectual property and model ownership issues, licences to use the model will be granted by the employer to the participants but only for the purposes of the project and only to the extent that each participant feeds into the model. Again, it is likely that each party will cross-indemnify the others in relation to infringement of intellectual property rights. The employer usually ends up owning the model and the data at the end of the construction process.

This does raise the question of what happens after the construction process is completed and the model is being used in the maintenance of the building. Who will own the intellectual property rights in the proprietary systems installed in the building?

To summarise, it seems clear that the tabular approach, dividing the project into progressive stages from initial design to completion cross referred to a schedule of services, will be the way to go. This should provide a document which develops with the project in which inputs and outputs are clearly specified. This will ensure that everyone knows what they have to produce by when and what they can expect from the other parties in the process.

The protocol itself should be capable of being incorporated into existing standard contracts using fairly short introductory clauses. There are still creases to be ironed out such as where the protocol will sit in the contract hierarchy (somewhere fairly close to the top, I expect) and the extent to which specific obligations in the protocol need to be incorporated into the main contracts. We also need to decide who will be required to sign up to the protocol.

Personally, I can see no reason why every party up and down the supply chain who will be entering into the protocol should not be contractually required to do so shortly after signing their contract.

For lawyers, the introduction of BIM raises all sorts of interesting questions but the practicalities at this stage are more important, such as sorting out a workable BIM protocol which can be slotted into existing contracts with a minimum amount of fuss and amendment. That would be a really useful task which lawyers could do to help the construction industry achieve the government’s aim by 2016.

Simon Lewis is the head of construction at Dickinson Dees