Welcome to The Ultimate Legal Guide to Building Information Modelling. This guide provides an in-depth look at how the law applies to building information modelling, as well as the legal issues which can come about.
The use of building information modelling continues to grow. Because of this, it is vitally important for lawyers, architects, builders and the entire building information modelling ecosystem to understand how it works and how to manage and deal with the legal issues.
Author: Farrah Motley, a Solicitor of the Supreme Court of Queensland.
What is Building Information Modelling?
A technical perspective of building information modelling
Many people view BIM as a "model", like a digital visualisation of geometric shapes that come together to look like a building. But BIM is much, much more than a model. If you think of BIM only as a model, you're missing out on where its true value lies.
Today, every design service provider (whether it's architects, engineers or designers) uses BIM. At it's most rudimentary form, BIM includes creating drawings using CAD or Revit. BIM can go from creating basic geometric shapes right up to creating 'digital twins')/
Building information modelling is a process. Grounded in software, it's a live, interactive, highly collaborative and iterative process which displays information. The display of geometric shapes is only one of the ways that BIM provides information.
BIM brings together all of the disciplines involved in designing and constructing a building. Each discipline provides data and information, which is input into the BIM model. As a building moves through the design and construction phase, the BIM model is continuously updated. Often, there is no single point of data entry for the BIM model. Each separate discipline is responsible for adding their own data to the model.
The idea is that BIM allows for a more efficient design and construction process, by displaying the various disciplines together, showing how they interface and where they clash.
BIM enables a better understanding of a project by bring together all the elements of a building into one model. The digital model means that a building can be virtually built and tested, without starting any real work on site. BIM has to potential to reduce the potential for expensive defects or discrepancies and redundant ideas.
All of this is great in theory, but there are a number of legal issues that arise with BIM, mostly because of user error and unreliable data inputs.
A legal perspective of building information modelling
From a purely legal perspective, building information modelling is intellectual property. That intellectual property takes the form of:
trade secrets (if there are unique design and construction methods and processes used); and
copyright (in the software coding that sits behind the model as well as the visual display of the data).
In this regard, BIM is looked upon from a legal perspective as being no different to a 2D drawing.
Building Information Modelling and Intellectual Property
Working out who owns (or who should own) the intellectual property in BIM can be challenging, because there can be so many contributors.
Some of the issues relating to intellectual property that may arise include:
identifying the party responsible for maintaining the data in the model;
clarifying who owns the intellectual property;
determining whether intellectual property in the model will be licensed or whether ownership will be transferred; and
identifying who will own the intellectual property in a completed model, with the combined data inputs.
These issues are often overlooked by lawyers because they don't understand how BIM is different from any of the other services being performed under the contract. Because of this, the intellectual property rights may be treated in the same way no matter what services are being provided, when in fact the BIM may warrant a different approach when it comes to IP.
A good example of this is where a model may have more than one commercial application. If you give away your IP rights in the BIM model after it is first commercialised, you're potentially missing out on revenue.
Building Information Modelling and the Standard of Care
When it comes to BIM in the context of the Common Law standard of care, a few questions arise:
does the emergence of BIM and its increasing use mean that a service provider will be expected to produce BIM in order to discharge its duty of care?
will a new, independent standard of care arise because of the specialist nature of BIM?
Let's take an engineer as an example. The standard of care which an engineer will be held to is that standard of skill, care and diligence that a reasonable engineer, in the same circumstances, would exercise. This begs the question: if an engineer is providing BIM services, is the standard of care that of an engineer, or that of a BIM specialist? Are they mutually exclusive?
Building Information Modelling and Reliance
Because of its collaborative nature, the usability of BIM is heavily dependent on the reliability of the inputs from the various contributors. If one contributor inputs the wrong data, alters the BIM settings or authorisations, the BIM model will no longer be accurate.
Further, although BIM is cloud-based, the Common Data Environment in which it operates will be hosted by one contributor. If that contributor is the end client or building contractor, issues of reliance on in incomplete data set can arise. For example, because BIM is an iterative process, if a party seeks to rely on the BIM at any one point in time, the information they rely upon may be incomplete.
Because BIM is a process and not a static 'thing', it's important that any contract which includes BIM in the scope of services, clearly sets out that the BIM is for information purposes only, and is not to be relied upon to build up costs or use as a basis for construction.
Building Information Modelling and Scope Creep
Scope creep occurs when a service provider performs more work than they are contracted to provide, at no extra cost.
Because building information modelling is not widely understood, requires a specialist skillset to build, manage and interpret, as well as a high degree of collaboration, the work involved can be difficult to price. It can also be difficult for BIM service providers to stay firmly within their scope and avoid scope creep.
If a BIM scope is poorly defined, for instance because it is vague or does not specify the level of development (LOD), there is a risk of scope creep.
This is where the level of development and the BIM execution plan become vital to avoiding scope creep.
Specifying the Level of Development to Avoid Scope Creep
The LOD describes how evolved the BIM is, including the individual components that the BIM is made u of. As the LOD number increases, the BIM becomes more detailed and because of this, has a broader range of matters for which it can be relied upon.
Below is a summary of the recognised LOD levels:
LOD 100 - concept
LOD 200 - approximate geometry
LOD 300 - precise geometry
LOD 400 - fabrication
LOD 500 - as built
Scope creep can come about on projects involving BIM because one or more parties do not have a good understanding of what BIM is and what each level involves. For example, a designer may be required to produce a BIM at LOD 300, but the building contractor has promised the end client LOD 500 (as built). During the construction phase, the designer may get continual requests from the builder to update and add more detail to the model. This may end up producing a model that is closer to LOD 500 (as built), even though the designer has only been contracted and paid to provide LOD 300.
The difference in the amount of work involved in LOD 500 compared to LOD 300 may, depending on the building, be significant.
Using a BIM Execution Plan to avoid Scope Creep
A BIM execution plan is a detailed document that helps a project team working on a building information model to plan, identify and execute the BIM. It sets out the 'rules of engagement' to help each party that provides input to work collaboratively.
The more detailed a BIM execution plan is, the better chance that the BIM provider has to reduce scope creep. Even better, reference the BIM execution plan in the contract terms. If the BIM execution plan changes, or is not being followed by other participants (particularly those that you are not legally liable for), make sure you have a right to request a variation.
Building Information Modelling during the Construction Process
It's important to ensure that any commercial agreement which requires the creation of or input into BIM, clearly outlines that the BIM is not to be relied upon for construction purposes. BIM is a tool for design and construction stakeholders, but it should not be used as a basis for construction.
Because BIM is an iterative process, it may not be 100% accurate at any given point in time and may not go through the same quality assurance processes as 2D drawings or other deliverables.
Building Information Modelling during Operations and Maintenance
BIM is increasingly being used for operational and maintenance purposes. BIM's value does not end at completion of construction. It represents a building which, unless modified, will stay the same during its operations and maintenance phase.
For operators, BIM can provide easy access to information which can quickly identify materials, entry points and interfaces of services.
Building Information Modelling and Cyber Security
As an electronic file, BIM is susceptible to viruses, data theft and hacking.
The use of BIM involves a Common Data Environment ("CDE"). A CDE provides a repository for information on a project. The repository is used to collect, manage and disseminate all relevant approved project documents for collaborators.
CDE is important as it represents a system to manage, create and exchange information between collaborators. The contents of a CDE will develop across the lifecycle of a building. This means that it is important to ensure appropriate governance and maintaining data quality and integrity for collaborators and the end user.
The quality and integrity of the data can be severely compromised in the event of an external cyber attack or a cyber security event caused by a collaborator. For instance, inexperienced collaborators may inadvertently compromise the CDE, leading to corruption of loss of BIM data.
Building Information Modelling and Insurance
Most policies of professional indemnity insurance could be expected to cover BIM related services, however you should always check with your broker to confirm this.
On the one hand, the use of BIM may reduce the risk associated with a construction project. This is because the (often expensive) problems that arise onsite can be identified and addressed more easily and frequently during the creation of the model and before construction has started or the relevant phase has been reached.
Generally, professional indemnity policies do not specifically exclude coverage for professional liability arising out of BIM related services, however (and it's important to reiterate this point) always check.
An example of something in your professional indemnity insurance policy which may catch you off guard is an exclusion for claims arising out of software or IT failure. How this relates to a professional liability issue will depend on the circumstances and facts of the matter, but finding out you are not appropriately insured when it's too late is never going to be good for business.
Another issue which can arise in an insurance context for BIM services, is exclusion of proportionate liability schemes and legislation. Remember that BIM generally involves multiple consultants providing input into the model and sharing data. If your contract excludes proportionate liability legislation, you may be shifting your liability from being several to being joint.
This means that if one of your co-contributors to the model is negligent as well as you, and loss is caused as a result, the relevant party can choose to sue you for the full amount of the loss, even though a co-contributor may have caused some of that loss.
If your contract does exclude proportionate liability legislation and you are providing BIM related services, again your insurance broker is unlikely to give you any detailed insight. But it may well create uninsured risk for you, because your assuming legal liability under the terms of your contract that is greater than your liability would otherwise have been at law.
Building Information Modelling and Digital Twins
A digital twin is an exact digital replication of a physical item or process. A digital twin can be of anything; a car, an airplane or (as we'll discuss in this guide) a building.
The concept of a digital twin is somewhat academic; because of the exceptional detail, accuracy and input required to create a digital twin. Is it possible to create an exact digital replication of a physical item or process?
Are You Looking for a Business Lawyer?
We can help your business and provide fast and simple commercial legal advice. Call us today to talk to an Australian lawyer. We offer a free initial consultation and fixed-fee legal services.
Want to read more? Check out this article about how much you can expect to pay for a lawyer.
Author: Farrah Motley | Legal Principal
PROSPER LAW - A Commercial Law Firm for Businesses
M: 0422 721 121