When BIM goes wrong: legal challenges in the spotlight
Issues related to building information modelling (BIM) are becoming increasingly common in disputes due to confusion over ownership but also design errors that cause delays or disruption to projects. Luke Christou reports.
uring a decade of rapid digital transformation, building information modelling (BIM) has impacted architecture, construction and engineering more thanany other innovation.
In 2011, just 13% of industry professionals surveyed by construction software provider NBS were actively using BIM software, and 43% had yet to hear of the technology. A decade on, according to the annual NBS BIM Report, 73% of practices now use BIM, while just 1% remain unaware.
BIM offers plenty of benefits, including improved visualisation and increased collaboration. However, the widespread adoption of BIM has also created new challenges for firms to navigate and overcome.
In 2016, Trant v Mott MacDonald became the UK’s first reported case involving BIM. The case, between engineering firm Trant Engineering and design consultant Mott MacDonald, centred on ownership of and access to BIM data following the breakdown of the business relationship.
While this was the first judgement to be publicly reported, it likely wasn’t the first court case relating to BIM, and it certainly wasn’t the last. According to the latest National Construction Contracts and Law Report 2018, use or ownership of BIM is the cause of approximately 3% of construction disputes.
According to Rebecca Shorter, a construction law expert at global firm White & Case, BIM-related issues are becoming increasingly common in disputes. Such issues aren’t just caused by confusion over ownership, but also due to design errors that cause delays or disruption to projects.
“In my own practice, I have worked on international arbitrations where BIM-related issues have been one of several disputes to be resolved, and also a contributing factor to other design, delay and payment disputes,” Shorter says. “I would say that BIM related issues are a more common feature of delayed and disrupted projects these days.”
Issues resulting from BIM
The use of BIM presents a number of opportunities for errors to occur. Human error during the design process, file corruption resulting from the use of incompatible software applications, as well as lacking communication can all cause issues as a project progresses.
A past dispute in the US involving two anonymous parties, for instance, occurred as a result of a breakdown in communication between the designer, client and contractor. While the BIM file provided by the designer showed that the building’s mechanical, electrical, and plumbing (MEP) systems needed to be fitted a particular way, this wasn’t indicated in the 2D documents provided to the MEP engineer. As a result, the contractor ran out of space after 70% of the assembly had already been completed, resulting in a multi-million-dollar settlement.
While minor, inexpensive issues are likely to be resolved internally over the course of a project, more substantial issues that could result in high costs, long delays or damages are more likely to result in litigation, Shorter says. According to Arcadis’s Global Construction Disputes Report 2020, the average construction dispute has a value of $30.7m.
“The types of design issues that are most likely to result in a dispute are the ones that can be described as systematic,” Shorter says. “If the remedy involves the entire removal and replacement of a defective element of a project, these types of issues tend to be the hardest to fix and the most costly.”
The Empire House redevelopment has been designed with changing requirements in mind, offering ample access to outdoor space.
BIM encourages the sharing of files and data between the numerous parties involved in the development, construction and maintenance of a project. Over the years, issues regarding the ownership and copyright complexities that this creates have been flagged time and time again, but it also raises questions over liability when issues arise. With numerous parties often sharing the same model, determining who is responsible for what becomes more of a challenge.
“Problems can be caused by a combination of both design and workmanship issues, and there may be liability on the part of more than one party,” Shorter explains. “Who is liable for these types of issues typically requires a fairly complex analysis of the technical issue, the position under the contract and in law, and the facts of what happened.”
Outlining clear responsibilities
Research shows that the use of BIM can significantly reduce the amount of design errors that occur, minimising the cost and time waste of a project. One study found that BIM could reduce errors by up to 50% in the construction of precast concrete structures, for instance.
Used properly, Shorter says, BIM can help to reduce the number of disputes that arise in the construction industry. Firms seemingly agree; the NBS construction law report found that 70% of firms believe increased collaboration has helped to reduce the number of conflicts that arise in the sector.
“What can cause problems, however, is when the protocol for the use of BIM is not reflected in the contract documents for the project,” Shorter adds.
People often forget to check whether the terms of their contract addresses issues of ownership of the BIM model, and what is required from each part and when.
In order to avoid issues once the project is underway, Shorter says, there is a need to outline the responsibilities that each party has through legal documents that suitably address the input and expectations of each party, ownership of the model, as well as responsibility for any issues that could arise. Doing so not only reduces the risk of liability in case of a dispute, but it also helps to avoid issues resulting from miscommunication and mismatched expectations if the completed work fails to live up to expectations.
Yet, as of 2018, only 40% of firms were referring to BIM in their legal contracts.
“Don’t forget that working with BIM is not only a technical issue but also a commercial one,” Shorter insists. “Training and supervision of staff using it for the first time is obvious, but people often forget to check whether the terms of their contract addresses issues of ownership of the BIM model, and what is required from each part and when.”
Ironing out BIM’s legal pitfalls
From social media and misinformation, to facial recognition and data privacy, the wider technology landscape shows that innovation rarely occurs without legal challenges.
With BIM, the industry finds itself in unfamiliar territory. Disputes resulting from unmet expectations, unexpected costs and delays are to be expected as the industry familiarises itself with new technologies, but these cases also provide an opportunity to learn and adapt.
“New developments and processes always have the potential to result in failures and claims over responsibility for those failures, simply because those involved are not going to be fully familiar with them,” Shorter says.
“Increased familiarity will reduce these risks, and also any wrinkles or potential problems in the processes themselves will be ironed out as those using them learn from their mistakes and do things differently the next time.”
Main image: Rebecca Shorter, partner and construction law expert at White & Case