Article published in the Adjudication Society Newsletter 04/15

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 the first port of call for most disputes in the construction sector which is the sector most involved in implementing BIM at the current time.

The articles will have 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 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 and Government policy

The definition must also be considered in the context of 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 was able to provide 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, the following have been implemented:

  • A network of regional BIM hubs to act as the first point of contact for BIM advice to industry
  • The BIM Task Group website to provide precise and comprehensive BIM guidance
  • A standard for the information management of construction projects (PAS 1192-2)
  • A standard for the information management of the operation phase of assets (PAS 1192-3)
  • A BIM Technologies Alliance to foster collaborative development
  • BIM enabled digital plans of work prepared by the professional institutions such as the RIBA Plan of Work 2013
  • A Technology Strategy Board (TSB) Research Project for the development of a free-to-use digital tool kit that exploits these standards for BIM
  • An information exchange format selected this chosen information format was Construction Operations Building information exchange (COBie). COBie was selected as the container for non-graphical information and 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. Two particular aspects are important from a legal perspective. As part of the guidance issued, the CIC in conjunction with the BIM Task Group published the CIC BIM protocol (“The BIM protocol”) and the guidance from insurers “Best Practice Guide for Professional Indemnity Insurance When Using Building Information Models”.

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 guidance from insurers suggests that implementing BIM to level 2 would not give rise to problems for the insurance arrangements of the industry. That 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

The government has 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 there are 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.

There are no strict definitions of BIM levels 2 and 3 but there are a number of working definitions.

PAS 1192-2 and PAS 1192-3 both use the graphic developed by Bew and Richards and PAS 1192-2 provides a list of “fundamental principles for Level 2 information modelling.”

Looking ahead at Government policy

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.

In September 2014, NBS ( National Building Specification) part ofRIBA Enterprises Ltd, which is wholly owned by RIBA won the £1 million Innovate UK contract to take forward development of the Digital Toolkit for Building Information Modelling (BIM).

The award followed a two stage competition to examine the feasibility of the project, which will deliver the final two elements of the standards and guidance being provided 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 is perhaps therefore worth considering what NBS has to say about BIM;

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 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).

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. The supply chain 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.

AD HOC BIM

BIM is already being implemented as a collaborative process.

However certain fundamental issues are not addressed when BIM is implemented as a stand-alone process because of the failure to recognise that it is not separate and distinct from matters regulated in our standard contracts or in bespoke project documentation. The 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 “How to use BIM with NEC contracts” states that technical information concerning the BIM process should form part of the Works Information. 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 and Dispute Resolution

In the following articles I will consider the implications of adopting the BIM protocol and other standard form approaches where the contractual status of the BIM process is addressed. I will also consider the challenges that will be faced in projects where a piecemeal approach has been taken.

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. It is the contention of this article that 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.

Tim Willis

Tim is a member of the CIC West Midlands BIM Hub and has given presentations for the CIOB, Constructing Excellence and OPEN BIM.