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Building Information Modelling (BIM) – what is it and what are the risks?

Building Information Modelling (BIM) is a model based approach and process for creating and managing information on building and infrastructure projects. The model gives architecture, engineering and construction professionals the insight and tools to plan, design, construct and manage buildings and infrastructure.

There are different dimensions to a BIM system. These dimensions refers to the way particular kinds of data are linked to an information model. As the dimensions increase, it will provide a fuller understanding on the construction project.

These dimensions are:

  • 3D –shared information model – creates graphical and non- graphical information and shares this information in a common data environment;
  • 4D –construction sequencing model – this adds an extra dimension by including scheduling data;
  • 5D –cost model – allows for accurate cost information to be extracted and included in the modelling;
  • 6D – Project lifecycle information – this advanced model allows for a better understanding of the whole life cost of the assets, where money should be proportionately spent and allows for better decisions upfront for costs and sustainability.

What are the benefits of using BIM?

BIM aims to provide better design coordination and improve constructability. When used effectively the real benefit extends beyond completion and handover, where the owner or facility manager will have a complete and accurate set of information that can be interrelated and cross-referenced.

The objects in the model can be linked to related information such as manuals, specifications, commissioning data, photo and warranty details. The information will allow for parties to efficiently and accurately manage the asset.

Advantages of BIM include:

  • Allowing parties to visualise a completed building with all of its components and systems before construction begins. This will allow for better planning of resources and methodologies throughout construction.
  • There will be fewer reworks as BIM allows you to see potential issues and areas before the error has occurred. This reduces the need for costly rectification works and revision.
  • The BIM system can track and monitor resources and provide detailed information before construction has begun. This will allow for accurate quantity of materials to be ordered which can be replenished only when necessary.
  • Allow for better support and prefabrication as parties can easily prefabricate components of the project offsite, saving time and money.

What are the key legal risks for using BIM?

The risks associated with using BIM include, but are not limited to:

  1. Intellectual property

The ownership of intellectual property in a BIM system may be tricky to identify as each contributor to the system retains rights over their contribution to the shared model and the third party will assume ownership of the completed model.  This will create issues if the ownership of intellectual property is not clearly defined in the professional services agreement or in the BIM management plan.

Issues that may arise include:

  • Identifying who will be responsible for maintaining the data;
  • Clarifying who owns the intellectual property;
  • Working out how will the model will be used in the long term, will ownership be on a license basis or permanently; and
  • Identifying who will own the intellectual property on an aggregated model.
  1. Professional indemnity insurance

There may be issues of whether professional indemnity policies will cover the use of BIM. Typically the policies do not exclude cover of the BIM system, however consultants should inform their insurance broker if they are using the BIM system.

If a professional service agreement is to be used, parties should ensure all parties contributing to the BIM have professional indemnity insurance to cover their input and consider the impact of any contractual limit of liability by other consultants.

Issues that may arise include:

  • If consultants agree to share liability or risk of error in a shared BIM this will mean that they are undertaking liability of other parties’ error as well as their own, these risk sharing agreements are likely to occur on projects that are being run on an integrate delivery basis but may create significant risks if there are complications;
  • Some professional indemnity polices include broad exclusions for claims arising out of software failure. These exclusions may limit or exclude cover of BIM, care should be taken to ensure that no software or IT exclusions are included in the policy; and
  1. Stakeholders responsibilities

The authors of a BIM system are potentially multiple stakeholders such as the designers, consultants, contractors and clients and anyone who has produced information that is relevant to the design, construction, operation or maintenance of the building.

However, the authors can change and vary over time as the model progresses from design to construction. This will mean the responsibility and liability of each author will shift over time. Stakeholders to the BIM will need to ensure the responsibility and liability of each other authors’ contents are clearly defined.

The use of BIM may change the relationship between contractors and designers, and increase the legal risks for contractors. Typically, the contractors have no significant involvement in the design process and rely on the drawings provided by the designer, as BIM allows contractors to be actively involved in the design process, contractors may be liable for errors or omissions in the drawings.

Some more risks…

Other risks, outside of the legal risk, include:

  • The best BIM systems will of course be expensive and may not be accessible for all projects.
  • Incompatibility – the BIM system is not universally used among construction professionals.
  • Lack of experts – as the BIM system is relatively new, there are limited number of experts in the field. Users of BIM may need to consider additional investments in training and education.

Take Away

A BIM system is an enabler of collaboration where data and information is presented in a transparent manner. However, the system will require communication and collaboration and the risks and liability need to be identified in the main contracts. To ensure efficiency, all construction projects using the BIM system will need to ensure there is an audit trail of every exchange, decision and approval point.

If you have any questions regarding using a BIM system in your next construction project please do not hesitate to contact Morrissey Law + Advisory.

Disclaimer: This publication by Morrissey Law & Advisory is for general information and commentary only and should not be considered or relied upon as legal advice. Formal legal advice should be sought in relation to any matters or transactions that may arise in relation with communication.