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Head of Financial Lines, International, AXA XL

Building Information Modelling (BIM) has been billed as a sort of Holy Grail for the construction industry. The system promises to transform projects, making programme delays and defects – and the attendant legal spats - things of the past. The idea is that all the different disciplines involved in the project collaborate on the same computer model of the structure. They work harmoniously to create a flawless construction process, with optimum control of costs and carbon emissions.

You could be forgiven for thinking that this sounds a bit too good to be true. And in fact there are some potential flies in the ointment. Among the biggest challenges BIM presents are the security of data and confusion around who is responsible for what.  Here, we explain the challenges and how they can be tackled.

Whose responsibility is it anyway?

Probably the most pressing worry concerning BIM is the lack of clarity around liability. Stuart Essex, senior underwriter, International Professional Design Underwriting at XL Group, says: “BIM is a whole new way of working, so some of the old rules around hard copies of designs and programmes cannot apply.”

The first grey area is that many different people input information into the same model, so there is potential for the lines of responsibility to become blurred. Additionally, how qualified are the parties entering the data? What if an architect is visiting the engineer’s office and works on the model using the engineer’s log in?

Even when it is clear who added what to the model, there could still be confusion around liability. Essex says: “When a design flaw occurs, if all parties have seen the information, who is responsible for the flaw and how would you apportion liability?”

Then there is the question of who owns the model and particularly who bears the risk if the software fails? Furthermore, if it is established that, say, the engineering company owns the model, how can the project engineer supervise the other companies working on the project when they are not contractually under his or her control?

Another issue is that most parties using BIM in the UK at the moment do not use a single standard for exchanging data. This means that models cannot necessarily be used at every stage of the design and construction management process. It leaves a worrying amount of scope for the accurate transfer of data to fail as it travels through a labyrinth of different formats used by a multitude of computer programmes.

These liability problems are compounded because BIM is so new. This means there are insufficient legal precedents concerning the use of BIM – and in fact none in the UK – that can bring us clarity on the legal exposures.

Data dangers

Data security is the next most pressing area of concern. The first issue to consider is that when you are holding the project owner’s data on your system you will owe a duty of care to them to protect their confidential information. Essex says: “This can be a considerable risk if the data contains confidential client information.”Then there is the fact that a number of different companies may be holding important data. “If something happens to one of those firms or their computer systems,” Essex says, “have they backed up the data and what happens to it?”

Your data could also be hacked while held on another company’s system, with cyber threats ranging from denial of service attacks to corporate espionage. In case you thought this was not a serious risk in the construction industry, recently an architect’s computer systems were attacked by a Trojan virus. The malware was designed to send copies of the architect’s documents to a file-sharing site in China - the site was subsequently shutdown.

Finally, engineers and architects may also have concerns about sharing cutting edge design information with third parties. This raises the risk of intellectual property theft. Solutions

As daunting as these issues may sound, this should not necessarily put you off using BIM Essex says: “BIM is a new exposure but it can represent real efficiencies and is in line with modern thinking and working practises.” It clearly has pros and cons but I think it’s a good thing for the design and construction industry.” 

So how can you lower the risks of using BIM?

Some suggestions are set out below; however you should consult with your legal advisors.

You should start preparing before you are working with BIM. First, understand the time and expense of implementing this new working method. The research and acquisition of the technology should be carefully managed – and you should regard this as an ongoing process because the technology is highly likely to keep evolving.

Next, prepare your internal team. Engineers, for example, will need to learn more about cost and quantity estimates, which are integral to BIM models. Essex adds that project management skills will become more important too: “You will be working more closely with other firms so there will be a greater need for team-building, co-ordination, communication and conflict resolution skills.”

You must also talk to your clients. Make sure they have a detailed understanding of how BIM works, including how its use will mean that the programme will progress in a different way to that of a traditional project. After these conversations, ensure that your client’s requirements and expectations are documented.

It is vital to use the contract with your client to tackle potential problems. First work out how many other parties will use the BIM model and ensure that the contract sets out the agreed formats of BIM-generated documents. Essex says: “The contract should include provisions to protect you against unauthorised changes or re-use of the information in the model. Include a clause that allows you to reply on the information provided by others without doing excessive checking.”

If possible, create a framework agreement for all collaborating parties. This document should define who is responsible for what, who owns models and drawings and who will host and manage the model. You can then allocate a corresponding portion of risk to each party. It may also be worth including a mutual waiver of consequential damages caused by errors in the model.

A good option may be to use the BIM Protocol. The protocol can be added to existing contracts, such as those in the JCT suite, with limited amendments. It was launched by the Construction Industry Council (CIC) in March with government backing, although it has yet to be tested widely in the industry. Another useful tool may be a new British Standard, sponsored by the CIC and also launched in March. The standard, PAS 1192-2, sets out how information should be shared by parties using BIM. 

However you choose to approach BIM, write down your procedures and stick to them. Set up standard ways to send files, and backup data, and do not allow using BIM to override your usual design checks and quality controls.

Finally, talk to your insurance brokers, insurer and legal advisers. Explain that you will be working with BIM and what it will entail, and ensure there are no gaps in your insurance cover.

Following these steps will go a long way to reducing the risks of using BIM. So perhaps the dream of super-efficient, data-based construction could be easier to achieve than you might think.


Implications of BIM Level 3

The government’s requirement that all public projects use Level 2 BIM by 2016 makes it crucial for construction companies to begin preparing to use the system as soon as possible. However, the requirement, announced in the Cabinet Office’s Construction Strategy, which was launched on 21 May 2011, says that the construction industry should make its ultimate aim Level 3 BIM. This has further consequences.

At Level 2 BIM the various construction disciplines exchange information in a structured way but they each use their own file formats and there is no centrally-held model of the project. However, with Level 3 BIM, often described as “full BIM”, there is a single centrally-held model and the parties exchange information via a common set of standards and protocols.

This approach will potentially bring benefits, including improved efficiency and closer collaboration. However, it will also increase the risks we outline in this article. The move towards BIM Level 3, then, means it is even more important that construction industry firms are aware of what steps to follow to minimise their liabilities and shore-up data security.


THE INFORMATION IN THIS ARTICLE IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESSED OR IMPLIED. XL Group companies and its related and affiliated companies disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose.

Nothing contained within this article constitutes legal advice or is intended to set a standard of care for design professionals, either in general or in regard to a particular case. Accordingly, XL Group companies or related and affiliated companies assume no liability whatsoever in connection with the information contained within this article or its use.

The information contained herein should be used in conjunction with specific guidance from a suitably qualified lawyer.


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