BIM Disputes – What are they and how will we resolve them?

This is the first of a series of articles in which I will explore the challenges that will arise from the implementation of Building Information Modelling (“BIM”) for those involved in dispute resolution. This is of particular interest to the adjudication community as it is feature of adjudication that it is frequently the first port of call for disputes in the construction sector which is the sector most involved in implementing BIM at the current time.

The articles in this series will seek to break the subject down and this first article is intended to give an overview of what is happening in the industry and then for subsequent articles to consider the implications in respect of a number of discrete areas of liability.

What do we mean by BIM?

Before leaping into the subject it is necessary to define some terms. Firstly, what do we mean by BIM?

There is no single universally accepted definition. A definition I have used is that adopted by Royal Institute of British Architects (RIBA).

“Building Information Modelling is digital representation of physical and functional characteristics of a facility creating a shared knowledge and resource for information about it forming a reliable basis for decisions during its life cycle, from earliest conception to demolition.”

The fact that there are a number of definitions arises from the differing contexts in which the term is used.

The National Building Specification (of which more later) has commented on BIM in the following terms :

“There are many definitions of Building Information Modelling (BIM) but it is simply the means by which everyone can understand a building through the use of a digital model. Modelling an asset in digital form enables those who interact with the building to optimise their actions, resulting in a greater whole life value for the asset. Through BIM the UK construction industry is undergoing its very own digital revolution. BIM is a way of working; it is information modelling and information management in a team environment, all team members should be working to the same standards as one another. BIM creates value from the combined efforts of people, process and technology…”

The UK has not been the first country to develop BIM and so much of our understanding and aspirations for BIM have their source in the US and Scandinavian countries. But we have introduced our own requirements.

BIM Levels

BIM is often discussed by reference to the concept of levels and compliance with those levels, which reflect the extent of collaborative working. In broad terms, at the most basic end of the spectrum (Level 0 BIM) there is no collaboration – with 2D CAD drafting only being used – whereas at the other end (Level 3 BIM) it is envisaged that there will be full collaboration between multiple disciplines all using a single shared project model.

BIM and Government policy

The government has ‘bought in’ to moving the construction industry towards full collaborative BIM working. The definition of BIM must therefore be considered in the context of recent Government policy.

In the Government Construction Strategy published in May 2011 the Government stated “Government will require fully collaborative 3D BIM (with all project and asset information, documentation and data being electronic) as a minimum by 2016.”
By July 2012 the Government provided an update on the strategy:
“The legal, commercial and insurance protocols for BIM are nearing completion; the structured digital data exchange format known as COBie UK 2012 has been prepared and a number of institutions including RIBA have been working with the Construction Industry Council (CIC) to develop BIM-enabled plans of work. A Publicly Available Standard (PAS), 1192-2:2012, which documents the delivery of BIM-enabled design and construction information, is undergoing public consultation with an operational version covering asset management and operation due for the end of 2012. Work on a comprehensive training strategy is underway along with general supply chain guidance.”

Since the publication of the Construction Strategy in 2011, we have now witnessed:

The establishment of a network of regional BIM hubs to act as the first point of contact for BIM advice to industry;
The creation of a BIM Task Group website to provide precise and comprehensive BIM guidance;
The drafting of a standard for the information management of construction projects (PAS 1192-2)
The drafting of a standard for the information management of the operation phase of assets (PAS 1192-3)
The establishment of BIM Technologies Alliance to foster collaborative development
BIM enabled digital plans of workhave been prepared by the professional institutions (such as the RIBA Plan of Work 2013)
A Technology Strategy Board (TSB) Research Project has been commenced for the development of a free-to-use digital tool kit that exploits these standards for BIM
The selection of Construction Operations Building information exchange (COBie) as the container for non-graphical information. The reasons for its selection were pragmatic; it is cheap to implement with tools readily available and has forward compatibility with international open standards such as ISO 16739.
Much has been written about these documents and further reading is available.

I quoted above an explanation of BIM provided by the National Building Specification. In September 2014, the NBS – part of RIBA Enterprises Ltd (which is wholly owned by RIBA) – actually won the £1 million Innovate UK contract to take forward development of the Digital Toolkit for Building Information Modelling (BIM) (following a two-stage competition to examine the feasibility of the project). The NBS will therefore ultimately deliver the final two elements of the standards and guidance being produced by the Government. This free-to-use BIM toolkit will make available a digital plan of work and a classification system which incorporates definitions for over 5,000 construction objects at each of the delivery stages throughout the life of a built environment asset. It has the following to say about future Government strategy :

“The UK Government’s Construction 2025: Industrial Strategy for Construction is targeting lower costs, faster delivery, lower emissions and improvements in exports to position the UK at the forefront of international construction. The UK Government’s Construction Strategy 2011 is a framework for a range of work streams, all of which contribute to the 2025 strategy. This framework forms the basis of the government’s BIM hypothesis: “Government as a client can derive significant improvements in cost, value and carbon performance through the use of open sharable asset information.” The objective of the Construction Strategy 2011 is to accelerate the adoption of BIM throughout the UK construction supply chain. The requirements by 2016 are for all centrally procured Government projects to be a fully collaborative 3D BIM (with all project and asset information, documentation and data being digital).”

Two key stages in the development of BIM to BIM level 2 remain to be completed;

Firstly, to facilitate the way in which users interact with the information contained in BIM models, these needed to be standardised. To achieve this the digital building blocks that are used to create virtual assets need, in turn, to be standardised. These building blocks are commonly known as ‘BIM objects’.
Secondly the schedule of services to allow multi-discipline collaboration from the inception of the facility to its whole life usage need to be completed.
The government has now refined its target to aim for implementation of BIM level 2 by 2016. BIM level 3 does not have a target date yet for implementation but on 26 February 2015 it was afforded a new policy name (Digital Built Britain) following the publication (by the Business Secretary, Vince Cable) of “Digital Built Britain – Level 3 Building Information Modelling – Strategic Plan”. There are also more fundamental policy changes that have been co-joined with that ambition in the form of the Government’s “soft landings” policy that seeks to achieve reliability of information for transfer from the construction phase to facilities management and clear responsibility for the reliability of that information.

BIM is not just a Government policy

It would be a mistake, however, to consider BIM only in the context of Government policy.
The other context in which BIM is developing is driven by the supply side rather than the client. Indeed although Government policy has provided a catalyst, and the Government as client is at the heart of the BIM strategy, the client is largely absent from BIM as it is developing in practice. Clients generally do not have information requirements and are not yet making decisions about their facilities based upon information modelled in a new and different way. That has not stopped the supply chain which has not waited for the client to catch up and is increasingly using the benefits of BIM to improve the construction process. The response from the supply chain is happening at a time when standardisation and many of the tools for collaboration are still being developed. Crucially the supply chain does not necessarily limit itself to BIM level 2 and neither does it take care to document the new process in the manner suggested by the BIM protocol.

The difficulties posed by ad hoc implementation
BIM is, thus, already being implemented as a collaborative process. However, this brings with it some dangers because certain fundamental issues are not addressed when BIM is implemented as a stand-alone process. It is important to recognise that it is not separate and distinct from matters regulated in our standard contracts or in bespoke project documentation.

Two particular aspects are important from a legal perspective:

(1) In 2013 CIC and the BIM Task Force also published guidance from insurers in the form of the “Best Practice Guide for Professional Indemnity Insurance When Using Building Information Models”. The guidance from insurers suggests that implementing BIM to level 2 would not give rise to problems for the insurance arrangements of the industry. That conclusion is predicated upon the use of “federated models” where the authorship of information and control over its use or modification is defined or agreed to by its author. The guidance states:

“It should also be stressed that this report does not consider the Level 3 BIM environment, which raises very different liability issues which will need further consideration. By way of explanation, by level 2 BIM we broadly mean that a “federated model” is being used, albeit in a managed 3D environment and perhaps with 4D construction sequencing and /or 5D cost information. Level 2 BIM requires each participant to develop their own model(s), which are then shared with the project model, with appropriate audit trails in place. It is the robustness of these audit trails and change control systems that gives insurers comfort. It should be noted that simply because two or more parties are working together, this does not mean that this extends into Level 3 BIM territory, provided that the resultant models are still “federated””

(2) In addition in 2013 the Construction Industry Council published a protocol on the use of BIM (“The CIC BIM protocol”) in conjunction with the BIM Task Group as guidance. The BIM Protocol is a document intended to regulate the duties and liabilities of those involved in the BIM process. The document also created a new and distinct role – that of “Information Manager” – and an outline schedule of services was developed for that role. It was also suggested, at that time, that the CIC would publish an updated schedule of services to allow collaboration across disciplines and from project inception to management of a facility.

The CIC BIM Protocol responds to this potential conflict between procedures, or absence of, documentation by requiring :

firstly, that a protocol is put in place by the client,
secondly, that the protocol must be incorporated into bilateral contracts entered into by the parties with their supply chain; and
thirdly, that the protocol’s terms will take precedence over other terms in the bilateral contracts.
A central issue concerns the status given to information produced as part of a BIM process. If no protocol is put in place fundamental uncertainties arise between the delivery and processing of information in the traditional context and the new modelling processes and new information exchanges.

There are different approaches and there are circumstances where simply nothing is said in this regard. For example :

NEC guidance on “How to use BIM with NEC contracts” states that technical information concerning the BIM process should form part of the Works Information; and
The draft MOJ requirements state that information about the completed building will constitute part of the product alongside the building itself.
The CIOB Contract for Use with Complex Projects guidance states:
“Where a Model is prepared as a Contract Document, the drawings are to be generated from the Model. Therefore for the purposes of identifying the consequences of inconsistencies between them, the Model must rank in priority above any Drawings included in the Contract Documents.211”

Clause 2.2 in the BIM protocol provides “In the event of any conflict or inconsistency between a Model prepared and delivered in accordance with this Protocol and any document or information extracted from such Model, except where the information Requirements state otherwise, the Model shall prevail”

A Model is defined as being “a digital representation of part of the physical and / or functional characteristics of the Project”

In a recent project I have reviewed, the contractor has spent many hours of its time and that of the supply chain, drafting a very detailed BIM execution plan which it has included alongside its standard subcontract documentation. But no reference has been made in the contracts to the status of these procedures or the information they produce. The process sits on the critical path for design development and yet no thought has been given to the implications for the supply chain if they fail to deliver.

Another significant issue that arises in ad hoc adoption is whether the practices adopted in the supply chain adhere to the picture of BIM level 2 that insurers have in mind when they suggest that BIM implemented to that level can be accommodated within existing insurance arrangements.

BIM has the potential to change traditional structures and risk allocation in a very broad range of areas from building quality or performance to design, cost and programming. The implications for those resolving disputes could be far reaching both in terms of the context in which traditional areas of risk are subject to disputes but also in terms of the evidence, both factual and expert, that may be required to resolve them. Just as the law has had to develop the rules against which the design process is evaluated and the acts / omissions of its participants are judged, the law will have to develop rules to regulate the liabilities and duties of participants in BIM.