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CMS Guide to Building Information Modelling (BIM)

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Introduction
Editors
Shona Frame, Dr. Nicolai Ritter, Nikolaus Weselik, Tino Beuthan, M.Sc.
CMS Guide to Building Information Modelling (BIM)
The BIM discussion has become omnipresent in the design, construction and facility management fields in many countries around the globe due to its potential to reduce costs and the duration of projects and to facilitate cooperative work-flows. BIM enables designers to visualise a building in its entirety before it is built. It is seen as a cultural and structural change in the planning, construction and real estate sector which is more far-reaching than all other previous methodical and technical developments (e.g. CAD).
Due to the potential benefits of BIM, many governments have started to promote its use. However, the extent to which BIM is adopted in the different countries as well as the legal traditions and frameworks to be considered when implementing BIM vary around the globe.
This e-guide brings together analysis from our legal experts across 9 jurisdictions. Each summary covers the following aspects:
The e-guide also provides a list of internet resources for additional country-specific information about BIM.
What exactly is BIM
BIM describes a method of work by which - on the basis of digital building models - all relevant information for the life cycle of the building is integrated, administered and exchanged among the project participants.
  • Core to this is the creation of 3D-models. By contrast with a mere 3D-modeller, BIM-design tools offer a catalogue of construction-specific objects containing predefined components such as walls and pillars. Apart from geometrical information, these design and construction elements can be assigned with further properties such as material characteristics, lifespan, fire resistance, noise permeability etc. Further, these objects can have parametric meaning – by contrast with a collection of static (digital) drawing lines, they are defined as parameters and relate to other objects. For example, if a wall is shifted on the first floor all other associated elements in this and the other floors are adjusted automatically.

    Furthermore, the BIM components or assemblies can be linked to schedule constraints (4D BIM) and accurate cost estimates from the components (5D BIM). When linking attribute data to Facility Management (e.g. components manufacture, date of installation, the necessary maintenance) and further aspects of the life cycle of the building (e.g. environment / sustainability factors, demolition, disposal/recycling of building components) this is often described as 6D and 7D BIM.

    Each additional dimension integrates more information about a project, giving insight into cost-saving opportunities and how the asset can be managed most efficiently in its operational phase, post-construction completion (see below in detail). As a result, all information is interlinked in a transparent manner and all impacts of a change in one area on any other sub-area are visualised in real time.
  • Beyond changes in software design, BIM is driving fundamental change in how Architects, Engineers and Contractors work together, shifting energies towards greater focus and collaboration early in the schematic design process. Architects and Engineers can more effectively evaluate the performance and functional characteristics of different materials and systems and then quickly review the impact of different design scenarios.

Basic concepts for implementing BIM in your organisation
When implementing BIM in your organisation or in a specific project, different concepts can be distinguished and summarised with the terms open BIM (or fully collaborative BIM) and closed BIM (or “lonely” BIM).
In general terms, open BIM describes a design environment in which different project participants using different BIM software solution share and integrate their models and data with each other using non-proprietary file formats, including IFC (Industry Foundation Classes).
On the other hand, closed BIM refers to a relatively restricted design environment in which all participants use a single BIM software platform.
In general, the main benefits of BIM can be generated when using open BIM: It allows project members to participate regardless of the software solution they use and provide enduring project data for use throughout the asset life cycle, avoiding multiple input of the same data and consequential errors.
Deciding whether to work with open BIM or closed BIM depends on several key variables, including the size of the project, which performance parameter of BIM are to be used in the project (e.g. use of 5D; linking BIM to software for tendering or the Facility Management), fixed requirements of the client in regard to the use of the software, the diversity of all project participants, the platforms that the respective disciplines favour for implementing BIM and whether the project needs to maintain data for the whole life cycle (such as facilities management).
Benefits of BIM
BIM is capable of a positive impact on all phases of a project life cycle:
1. Cost certainty and cost reduction

  • Cost estimation with BIM is more accurate due to the integration of attributes in the model.
  • Identifying and fixing issues earlier in the project process reduces costly change order and avoids scenarios whereby progress on the project is hindered.
  • Automatic calculation of quantities on the basis of the BIM-model allows a more precise cost estimation for tenders and defect management.


2. Saving time
BIM offers several ways of reducing project time.

  • The opportunity to generate real-time values for any changes made by an architect or owner and to identify and resolve conflicts very early via clash-detections and other review tools may avoid project overruns and eliminate confusion.
  • The approach of BIM in involving all parties in the building process with a single shared model to work from reduces time-consuming information losses when a new or different team takes ownership.
  • The collaboration at an early stage allows opportunities to identify innovative and efficient methods of working which can lead to time and/or cost savings.


3. Increased planning quality

  • The possibility of analysing several design and construction alternatives for the project before the start of the construction phase increases planning quality.
  • BIM allows more accurate drawings and an early conceptualisation of the entire project


4. Increasing acceptance

  • The ability of BIM to identify and visualise complex connections of projects may potentially enhance the acceptance of a (large) project by public and decision-makers.
  • It allows early engagement with end users and delivery of a product which meets their needs.


5. Improved collaboration and information sharing

  • The requirement in an open BIM project for all parties to work together increases the need for collaboration and sharing of information. This can benefit projects where this culture leads to a problem-solving attitude amongst participants.


6. Enables effective Facility Management

BIM benefits building owners and facility managers:

  • a BIM model can be integrated with Computer-Aided Facility Management Systems (CAMS) for maintenance operations
  • streamlined change management
  • improved space management
  • availability of quality information required for ongoing operation, maintenance and useage of the building.


7. Improve Energy Efficiency and Sustainability

  • Aspects of energy efficiency, waste management and water management and hence sustainability can be efficiently integrated into a BIM-model.

How we can help
CMS has been legally accompanying the evolution of BIM in several jurisdictions. Our law firm advises clients in several countries on all aspects of specific BIM-related projects as well as the general implementation of BIM in your organisation.
Please use your usual CMS contact in the relevant jurisdiction if you wish to discuss the implementation and usage of BIM further or for more general enquiries please contact: 
Shona FrameDr. Nicolai Ritter
PartnerPartner, Rechtsanwalt
T +44 141 304 6379T +49 30 20360 2509
E shona.frame@cms-cmno.comE nicolai.ritter@cms-hs.com

Nikolaus Weselik Tino Beuthan
PartnerAssociate, Rechtsanwalt
T +43 1 40443 2250T +49 30 20360 2509
E nikolaus.weselik@cms-rrh.comE tino.beuthan@cms-hs.com

Austria
1. Is BIM Relevant to me?
The use of BIM is not mandatory and, so far, not very common in Austria for smaller scale projects. This is also due to the fact that Austrian architectural offices are usually rather small and may find the high software acquisition costs for the use of BIM prohibitive.
However, there are already standards for the technical implementation of BIM, namely ÖNORM A 6241-1 and A241-2, developed by the Austrian Standards Institute. Especially in large building projects BIM is already in use and thus especially relevant for the drafting of contracts.
2. What do I need to do to my contracts to deal with BIM?
The decision to use BIM is usually made by the Employer. Usually the ÖNORM A 6241 is agreed in the contract. The further details depend on the specific requirements of the project and the professionals involved.
The use of BIM requires a precise definition of the services and coordination of the different interfaces and levels of supply chain.
3. What are the standard form drafting bodies doing about BIM in their contracts?
As mentioned in FAQ 1, there exist some technical standards for BIM, the ÖNORM A 6241-1 and A241-2.
ÖNORM A 6241 was published in 2015.
ÖNORM A 6241-1 (BIM Level 2) replaced the former ÖNORM A 6240-4 (Engineering drawings for building constructions) and has been extended in detailed and executive design stages and includes various definitions.
ÖNORM A 6241-2 (BIM Level 3) includes the requirements for BIM Level 3 (iBIM).
4. What are the professional bodies (Architects / Engineers) doing about BIM in their appointments?
In Austria, so far there is no specific legal guideline but there is a technical standard for BIM, the ÖNORM A 6241-1 and A 6241-2.
5. What is the BIM Protocol?
The term “BIM-Protocol” is not very common in Austria and so far, no specific contract form exists.
6. Where does the BIM Protocol sit in the hierarchy of contractual documents?
There is no standard hierarchy of the BIM Protocol. However, especially in larger building projects, the hierarchical order of the documents is usually determined at the beginning of the contract. Generally, it is recommended that the BIM Protocol is ranked with high contractual priority.
7. Who can be the BIM Manager / Information Manager?
In several projects the project manager (“Projektsteuerer”) acts as BIM Manager. From a general point of view, the Architect, the Contractor, the Employer or an external BIM Manager might also act as a BIM Manager.
8. What do I need to do about insurance?
So far, no specific insurance requirements or agreements exist in relation to the use of BIM.
Usually, a standard professional liability insurance (“Berufshaftpflichtversicherung”) and a construction insurance policy (“Bauwesensversicherung”) will be concluded. Generally, the BIM planning service is covered by the professional liability insurance.
9. Do I need to be concerned about taking on any extra design liability?
In general, BIM does not change the liability for the different planners or Contractors.
BIM may lead in practice to less risk for the single Contractors due to its coordination and control functions.
For the planner, a precise definition of the scope of work and the existing interfaces is recommended in order to reduce possible legal risks. Further, liability caps for planners might be advisable.
10. Will BIM affect my ownership rights in my design or data?
The digital 3D building model may be protected under Austrian copyright law against an illegal reproduction, distribution or use provided that the model constitutes a personal intellectual creation (“geistige Schöpfung”). Moreover, provided that the prerequisites of Austrian copyright law are fulfilled, the model may also be protected as database work.
As access to digital building models might be easier, effective know how and user protection clauses will gain importance.
11. What data do I need to ask the Contractor to provide?
The data required will vary from project to project and will depend on the use to which the data is to be put.
In general, data about all Contractors, Sub Contractors, construction materials, employees, and the work process may be relevant.
12. What is the position re warranties / indemnities and is there any difference in a BIM project?
The Austrian provisions on warranty and indemnity generally are not affected by the use of BIM. The general civil law provisions apply. It would be recommended to agree on liability caps for planners.
13. Will BIM have any impact on planning and length of time required for construction projects?
One of the expected main impacts of BIM is the reduction of planning and construction time due to a better coordination and control and early detection of potential difficulties, defects or potential causes of delay.
14. How can I use BIM during the occupation phase of my building?
BIM may generally facilitate the target-performance comparison of a project and enable an early stage detection of defects, delay or supply shortage. It will be of importance not only for the construction phase but also for the complete life circle of a project. It will help to collect and operate with a complete documentation for the building’s operation and maintenance.
15. Where can I find additional information about BIM?
Additional (German) information is available from the following sources:
16. What will happen next?
Currently there are no legislative plans or proposals in Austria.
However, due to the increasing importance of BIM, Architects, building companies and lawyers are publishing in this field helping BIM to achieve a higher level of awareness.
Large architectural and engineering offices, which have the sources to work with BIM, may focus on this new niche and increase their marketing activities accordingly.
Also, especially larger Employers are beginning to focus on specific BIM requirements.
Contacts
Brazil
1. Is BIM Relevant to me?
Both the private sector and public sector in Brazil recognise that BIM could enhance productivity and efficiency in construction and facilities management. As of now, BIM is not well developed in Brazil, but wider adoption in the near future is highly likely. BIM is currently a hot topic in the construction sector, with an active lobby in favour of its implementation and steps having already been taken by the government to introduce initiatives related to BIM.
There have been some relevant projects that have, at least to a certain extent, used BIM, e.g. World Cup stadiums, Olympic Games venues, regional airports, the Museum of Tomorrow (“Museu do Amanhã”), as well as other buildings that were part of the revitalisation project of the port area in Rio de Janeiro.
Unfortunately, it is hard to ascertain to what extent or at which level BIM was used, or what the particular benefits and challenges were that the parties encountered in these projects.
In any event, the high costs associated with the implementation of BIM are likely a significant hindrance to its development in Brazil.
Currently, the adoption of BIM is not mandatory. Nevertheless, the public sector is discussing whether this requirement should be introduced and, if so, how the public authorities should go about implementing BIM.
A recent leading example comes from the state of Santa Catarina, in the south of Brazil, where the government has included BIM as a requirement in one of its projects. The government included experience of or qualification in BIM as one of the criteria for scoring points in the evaluation of bidders.
In the private sector, bigger construction companies might use BIM as an internal project management tool. Architects may also use BIM based on Revit. However it is currently entirely up to each company to decide whether or not investing in BIM is beneficial for their business.
At its current stage of development in Brazil, it is fair to say that the use of collaborative tools within BIM has not taken off because of discussions about who should pay for BIM. Although both the private and the public sector appear to be moving towards adopting or considering the use of BIM, there are different approaches depending on who presents the argument.
The public sector seems to be more focused on understanding the benefits of using BIM and the technical requirements to implement it. So far, there does not appear to be a wider commercial or legal discussion.
The private sector seems to have a better understanding of the technical features of BIM but is concerned about the associated costs and who will pay for them.
2. What do I need to do to my contracts to deal with BIM?
At this early stage, with no clear answer in relation to if and how parties involved in a construction project (whether by choice or by requirement) will adopt BIM, it is hard to say specifically which steps or provisions will be necessary.
However in general terms, specific provisions on BIM will be required to deal with costs, liabilities, interfaces, etc., as well as provisions relating to the management of the model. To date, there are no standard Protocols available in Brazil to deal with these matters.
3. What are the standard form drafting bodies doing about BIM in their contracts?
The Brazilian construction market does not tend to utilise national or international standard form contracts. Although they may resemble international forms and also have certain similarities, each Employer, either public or private, tends to impose their own standard form on their Contractors.
Therefore it will be a matter for the parties, more than for drafting bodies, to decide how they will address the use of BIM in each case. In situations such as these, leading law firms tend to drive the wording of the clauses that eventually become market standards.
4. What are the professional bodies (Architects / Engineers) doing about BIM in their appointments?
It is not common in the Brazilian construction market to have Architects / Engineers in the same role as in the UK. The progress of works is mainly monitored by the Employer’s personnel or by someone appointed by and reporting to the Employer – not independent or impartial.
Therefore, it will be mainly up to Employers to state whether they want the Contractors and/or the lower tiers of the supply chain to use BIM. Then, it will be up to Contractors (Designers, Architects, Engineers) to analyse if and to what extent they choose to accept these conditions.
5. What is the BIM Protocol?.
There are as yet no BIM Protocols in place in Brazil.
6. Where does the BIM Protocol sit in the hierarchy of contractual documents?
So far, there is no mandatory rule about hierarchy of contractual documents. Nevertheless, the common practice usually provides that the contract prevails over its attachments.
Therefore, the parties are free to decide about the position of the BIM Protocol. At the same time, it is advisable that the parties are very careful when drafting these provisions, adopting and maintaining a common set of requirements, parameters definitions and standards to avoid inconsistencies and uncertainty. In any case, and in particular for projects involving public parties, we will have to wait until the government’s position on how public projects will deal with the implementation of BIM is known.
There is a chance that some information (like the below-mentioned list of prices in SINAP) is set as a mandatory reference in public procurement and thus will prevail over the contract.
7. Who can be the BIM Manager / Information Manager?
In Brazil, there have not so far, been many discussions about this topic. Nevertheless, as the implementation of BIM develops, this will of course need to be addressed.
When it does, there will be discussions about whether or not the BIM manager should be a third party, what their liabilities will be and who will pay for the costs of BIM management.
It is worth noting that these discussions are likely to take account of the intense involvement Employers tend to have in construction works in Brazil. It is part of the culture in the construction market that Employers, in particular those in the public sector, have a say in various and often extensive aspects of the projects. This cultural aspect may have an impact on the decisions about BIM management.
8. What do I need to do about insurance?
There have not been many discussions about this specific topic in Brazil. Currently, the insurance market has not signalled any changes deriving from BIM.
Nevertheless, as the market for BIM develops, the insurance market will certainly follow. Depending on the contractual structure to be adopted, in particular if the market for BIM evolves to become a multi-party structure, insurers might have to deal with a different allocation of risk to that which is currently applied.
9. Do I need to be concerned about taking on any extra design liability?
In general terms, Brazilian law provides that, unless an agreed exclusion or limitation of liability clause applies, a party who causes damage to another must compensate this other party for the damage caused.
As BIM is a collaborative model, there may be cases where the use of the model by a party impacts what has been or will be done by another. If there is an argument that this impact relates to design, there may be extra design liability which should be addressed in advance in the appropriate contract.
10. Will BIM affect my ownership rights in my design or data?
There have not been many discussions about this specific topic in Brazil. So far, the general rules about ownership rights still apply, which means that, in general terms, the contributors own the data or design they input in the model.
However, there may be discussions about who is the contributor after other contributions have been made over the initial one and as the model develops.
Therefore, in the absence of regulation, it is advisable that parties using BIM include in their contracts specific provisions on ownership rights.
11. What data do I need to ask the Contractor to provide?
The data required will vary depending on the project involved, its phase and contractual structure and on the use to which the data is to be put. In any case, it is important that the data provided meets the needs of the party receiving the data.
12. What is the position re warranties / indemnities and is there any difference in a BIM project?
In general terms, Brazilian law provides that a party which causes damage to another must compensate the other party for the damage caused.
The parties can agree on exclusion or limitation of liability clauses, and can also give warranties and indemnities they find suitable, provided that they deal with disposable rights.
Although there have not been many discussions about this specific topic, more negotiations on these provisions can be expected and it is advisable that the parties in a BIM project pay close attention to them.
13. Will BIM have any impact on planning and length of time required for construction projects?
The market expects that, in the medium and long term, it will reduce the overall length of time for construction projects. There is a chance that planning will take longer, especially in the initial years of BIM implementation, however planning is likely to be more efficient and consequently result in reduced construction time. So a positive impact is expected even from the very early stages.
14. How can I use BIM during the occupation phase of my building?
Some entities in the Brazilian Government consider the occupation phase to be the most important potential application of BIM, noting that the information consolidated in the model is extremely relevant in the long term occupation, operation and maintenance phase.
As a live database of everything that exists in the building, in particular when it is possible to add the element of time in the model, it makes operation and maintenance much easier and less dependent on knowledge acquired by specific people who will likely leave or be unavailable at some point during the life of the building.
15. Where can I find additional information about BIM?
Additional information is available from the following sources:
16. What will happen next?
The Federal Government is currently running a program called Investment Partnership Program (PPI - “Programa de Parcerias de Investimento”) to boost private investment in certain sectors of the Brazilian economy and improve efficiency by means of better planning prior to the tendering of projects.
There are no specific provisions about BIM, but there are express references to innovation and new technologies, therefore signalling that further steps will likely be taken towards the implementation of BIM in Brazil.
This potential was confirmed in December 2016 by the execution of a Memorandum of Understanding between the Brazilian and UK governments related to information exchange about BIM, including in projects related to the Investment Partnership Program.
Organisations related to the construction industry, like the Federation of Industry in São Paulo (FIESP – “Federação das Indústrias do Estado de São Paulo”) and the National Service for Industrial Training (SENAI – “Serviço Nacional de Aprendizagem Industrial”) are lobbying for an increase in the use of BIM, including by means of the provision of training, the development of libraries and the reduction of taxation of software and hardware.
Following the efforts of these organisations, the Brazilian Technical Rules Association (ABNT – “Associação Brasileira de Normas Técnicas”) published the ABNT NBR 15965 rule on how to define and classify the information to be used in the application of BIM by the industry sectors of Architecture, Engineering and Construction.
In terms of the public sector, the most substantial discussions are headed by the Ministry of Planning, Development and Management (“Ministério do Planejamento, Desenvolvimento e Gestão”) and the Ministry of Industry, Foreign Trade and Services (“Ministério da Indústria, Comércio Exterior e Serviços”). Both of these ministries have recently held seminars dedicated to BIM.
The Ministry of Planning, Development and Management is currently pursuing several BIM-related initiatives including the following:
  • The Brazilian Army has developed a BIM-based system for monitoring the real estate belonging to the Army (buildings and land).
  • The Secretary for the Federal Union Estate (“Secretaria do Patrimônio da União”) intends to apply the Brazilian Army’s BIM technology to monitor the Federal Union’s real estate (buildings and land).
  • The Secretary for the Federal Union Estate will focus the development of BIM for facilities management, recognising that life cycle costs far exceed the construction cost of buildings.
  • The forthcoming update to the Manual for Public Works – Buildings (“Manual de Obras Públicas”) used for construction works awarded by the federal government is likely to provide for the use of BIM.
  • The Caixa Econômica Federal (Brazilian state owned bank) is using BIM to build / review a reference database of prices to be used in public tender proceedings: the National Research System of Costs and Indexes in Civil Construction (SINAP – “Sistema Nacional de Pesquisa de Custos e Índices da Construção Civil”).

There is a Brazilian-European collaborative initiative called Support to Sector Discussion EU-Brazil Phase III (“Apoio aos Diálogos Setoriais UE-Brasil, Fase III”) which encompassed a study named “Experiences Exchange in BIM - Building Information Modelling”.
In December 2016 at the UK-Brazil Joint Economic and Trade Committee (JETCO) meeting, the governments of the United Kingdom and Brazil affirmed “the importance of promoting Building Information Modelling (BIM), in order to increase the productivity of the construction industry and improve value for public money”. At said meeting, the Brazilian and UK governments signed a Memorandum of Understanding and “committed to exchanging information on national strategies for the consistent diffusion of BIM.”
Contacts
Ted Rhodes
Partner
T +55 21 3722 9831
E ted.rhodes@cms-cmck.com

Chile
1. Is BIM Relevant to me?
To date, the private sector has been leading the adoption of BIM in Chile. The National BIM Survey (2016), conducted by the University of Chile with the collaboration of all leading Chilean professional associations, shows that over half (53%) of the total respondents are BIM users, with 22% of the overall participants being regular users (having used BIM on most of their projects in the last 12 months). These results represent a significant increase in the utilisation of BIM if compared to the survey pursued by the same institution in 2013 (where only 39% of the total respondents were users).
Nonetheless, in common with most jurisdictions during the early stages of BIM’s implementation, its utilisation by these users to date is limited only to its simple features. What this means is that the private sector has identified this technology as a proficient tool in reducing costs in the several stages of the project from an individualistic perspective and consequently, allowing them to be more competitive in bid projects and obtaining better margins. However, this does not achieve the final purpose of BIM which is to provide efficiency to projects during their complete lifecycle by coordinating the relevant parties and by generating savings for the project as a whole.
With this in mind, the Chilean government produced its BIM strategy in 2016, by delineating jointly with relevant parties in the private sector and professional bodies the basis for a wider implementation of BIM in the construction market. The agreement, dated 28 January, 2016, has as the main purpose to make joint efforts in increasing the sector productivity by the implementation of BIM. Amongst other measures, the agreement established that the Chilean Government would seek to start requiring fully collaborative BIM for all public projects by 2020, with the belief that the private industry will also require BIM gradually following the Government policy. In addition, an independent institution was created (BIM Forum Chile) to evaluate the sector and to promote the education of specialists in using the full range of possibilities that BIM has to offer.
Furthermore, on 13 May 2016 the Chilean Government and the United Kingdom Department for Business, Innovation and Skills (BIS) agreed on a Memorandum of Understanding for the collaboration on the development of technological platforms (BIM) for increasing productivity and innovation in the construction industry in Chile. Also, they agreed on finding the measures to encourage the commercial relationships between the construction parties in both countries.
In Chile, specialised standards for construction are issued by the INN (Instituto de Normalización Nacional), and to date no regulations making BIM mandatory have been issued. Training in BIM is at an initial level of development in the Chilean educational system. Practically half of the professional and technical training institutions include BIM content in their undergraduate programs, which are taught with a very technical approach, focused on the modelling of three-dimensional projects and the use of specialized software.
More comprehensive courses are only at the postgraduate level, teaching BIM collaborative work and the development of BIM project management skills, essential subjects for the correct execution of a project in BIM.
2. What do I need to do to my contracts to deal with BIM?
So far, parties have not required major amendments in contracts due to the implementation of BIM. However, it is foreseeable that significant issues may arise in contracts once the Government’s plan enters into effect in the coming years. This might include amendments to at least the following common provisions of building contracts:
  • Definitions.
  • Description of parties’ roles.
  • Design liabilities and IP rights description.
  • Sub Contractor’s regulation.
  • Information required schedules.
  • Interfaces regulation.
  • Hierarchy provision.

This also requires to be stepped down into subcontracts to ensure that the whole supply chain is under the same obligations.
3. What are the standard form drafting bodies doing about BIM in their contracts?
The Chilean construction market does not use national or international standard forms as is the case in other jurisdictions. Therefore, each contract is negotiated and freely agreed based on the autonomy of the will, enabling the Principal to require the use of BIM in certain projects or at least in regards to technical inspection of work sites (ITO, for its acronym in Spanish), in which case special clauses with these requirements are included.
4. What are the professional bodies (Architects / Engineers) doing about BIM in their appointments?
In Chile there is an Association, BIM Forum Chile, to which Universities, the Chilean Chamber of Construction (Cámara Chilena de Construcción), as well as the most important companies of the private area of Construction and real estate, and those that work with the Production Development Corporation (La CORFO), which is a state agency, all belong. Together they carry out meetings, seminars, publications, training courses and are a meeting point that keeps all interested parties in BIM networking with the system and training providers.
5. What is the BIM Protocol?
To date, there is no Protocol in Chile given that the construction market in Chile has mainly adopted “lonely BIM”. Consequently, no Protocol has attempted to provide the coordination and integration regulation that more advanced BIM levels require. As mentioned in FAQ15, there is a general consensus among the construction market that a National Protocol would have a positive impact on the evolution of BIM.
6. Where does the BIM Protocol sit in the hierarchy of contractual documents?
To date, there is no Protocol in Chile given that the construction market in Chile has mainly adopted “lonely BIM”. Consequently, no Protocol has attempted to provide the coordination and integration regulation that more advanced BIM levels require. The BIM Forum Chile association is currently trying to group and organize BIM practice and strategy in terms of construction, all due to its recognized efficiency in the construction, development and later stages of the project.
7. Who can be the BIM Manager / Information Manager?
The construction market in Chile has, to date, mainly adopted “lonely BIM”. Consequently, consideration has not yet been given to the concept of the BIM Manager role. However, certain professional services firms specialized in the use of the program are subcontracted by construction companies.
In the future, it is expected that Principals require the use and management of BIM for all professional services firms specialized in the supervision of the development and quality of construction and building project, known in Chile as Office of Technical Inspection of Work Sites “ITO”.
8. What do I need to do about insurance?
Due to the simple application that users have given to BIM, which has not generated material change to the risk profile of projects, insurance policies have remained with no major amendments. Nevertheless, it is possible that this will vary once the Government strategy enters into effect and consequently parties use further BIM levels.
9. Do I need to be concerned about taking on any extra design liability?
The design liability is a matter to be taken into consideration once the involved parties include more complex BIM levels in their projects. Meantime, in Chile, it is not a matter of concern given the limited application of BIM and the lack of designers overlapping in using BIM.
10. Will BIM affect my ownership rights in my design or data?
Given that the implementation of BIM in Chile is in its early stages, there is no information available about adverse consequences to ownership rights in designs or data.
Nonetheless, following external experience in the utilisation of BIM, it is expected that issues may arise regarding ownership. Hence, it may be necessary to include specific provisions in the building contracts to avoid any adverse consequences derived from BIM.
11. What data do I need to ask the Contractor to provide?
There is no information available to date on the position related to this in Chile. However, as we pointed out BIM Forum Chile is working together with the different players in the construction market to standardize criteria in the application of BIM.
12. What is the position re warranties / indemnities and is there any difference in a BIM project?
The warranties and indemnities have remained similar to date, due to the simple application of BIM. Nevertheless, it is possible that this will vary once the parties use further BIM levels, which may imply a different regulation of warranties and indemnities, having the necessity of including the utilisation of BIM, the level of coordination required and ownership rights, among others.
13. Will BIM have any impact on planning and length of time required for construction projects?
The Chilean Government strategy indicates that BIM will result in a reduction of the length of time required for construction by efficiently coordinating the resources in a project. However, the programme is still in its development phase, so the Government has not set out the exact time reduction target that it is seeking to achieve.
From a legal perspective, there is a possibility that BIM might have an adverse impact on the length of time required for the contract drafting period, especially considering that the impacts of BIM could mean that several Contractors are required to agree to certain contractual terms at the same moment.
14. How can I use BIM during the occupation phase of my building?
Linking the early design phase of a project and its end use is one of the purposes that the Chilean Government has set as the core in the future implementation of BIM, especially in the field of public works tendering for infrastructure such as hospitals, government buildings, etc. The Public and Private sectors have identified that there is a need to tie the phases of the project together by implementing BIM as a follow-up tool to use during the various phases of the building, including the occupation stage.
The suggestion is that building contracts may need to be adjusted to allow the identification of the objectives and the inclusion of the completion tests from the design stage in a manner that is coherent with BIM application later in the life cycle.
Further, the coordination between the involved Contractors has a significant role in achieving the total capacity that BIM offers, and consequently, the addition of specific regulation of interfaces and overlapping is advisable.
15. Where can I find additional information about BIM?
The University of Chile carries out the National BIM Survey.
In the 2016 report, the report mentioned the following as key findings:
  • Over half (53%) of all respondents are BIM users.
  • Autodesk Revit ® is the dominant software tool on the market, with 76% of users and 47% of exclusive users.
  • BIM is used for all type of projects, with small buildings (<2,500 sq. ft.) most frequently (51%)
  • BIM is mainly used for visualisation during the design process and the production of construction documents.
  • Construction-phase BIM capabilities (scheduling, cost estimation, construction monitoring) are almost never used.
  • Most users (36%) first draw their projects using traditional CAD tools and then build a BIM model.
  • Economic benefits (perceived ROI) increase proportionally with the level of use of BIM.
  • The satisfaction level with BIM is 7.4 on a scale of 1 - 10.
  • About a third (31%) of non-users know nothing about BIM.
  • The majority of users (68%) said that their use of BIM within the next 12 months will be higher or much higher than today.
  • Most of the actual users (71%) agree that it is imperative to generate a National Protocol.

Further information is available at the BIM Forum Chile website: http://www.bimforum.cl/
16. What will happen next?
The Chilean Government’s “BIM Plan” establishes the future vision for reforming the construction sector. The Government’s vision is to continue increasing the number of BIM users in the different sectors, together with deepening the tools that BIM users are implementing. In order to achieve this, in addition to the technical aspects, it is essential to get the legal framework right.
The major focus of the document is a wish to improve the process of construction and its results by incorporating new capacities and technological tools like BIM. This will require the education of specialists to manage the full range of possibilities included in BIM prior to its implementation in all public projects (expected to begin in 2020). Additionally, a contractual framework is required to face the inherent complexity that a collaborative system has in relation to design liability, data protection and ownership rights.
The Government’s plan includes the creation of institutions to ensure that the BIM Plan is sustainable in the future, and deeper levels are achieved by all the relevant actors. For that purpose, the Chilean Ministry of Public Works and Ministry of Housing are developing the necessary variations to its institutions to be prepared for receiving new methods. In the same sense, the BIM Plan includes the idea of capturing information from one project to be applied in the future, so the creation of a national archive is fundamental to capture the performance of buildings.
From the legal and contractual perspectives, the development of new structures is fundamental to achieve complete integration of BIM. This must not only include the coordination obligations of parties in the project in a different perspective as implemented to date but also the inclusion of the operational phase in contracts. To date, there has been less focus on the legal aspects but it is a discussion that it is going to arise in the future.
Contacts
Pabla Gainza
Partner
T +56 2 24852093
E pabla.gainza@cms-ca.com

France
1. Is BIM Relevant to me?
Is BIM Relevant to me? Currently, the use of BIM is not mandatory in France.
Since 2014, the French Ministry of Housing has started to promote BIM with an investment plan worth EUR 20 million.
A decree dated 27 March 2016, transposing the directive 2014/24/EU, provides that the use of BIM can be required when a public procurement contract is entered into, if it does not represent a criterion for discrimination between candidates.
The French approach towards BIM is relying on incentives rather than imposing obligations.
Overall, BIM so far remains largely unused in the construction sector in France.
2. What do I need to do to my contracts to deal with BIM?
The use of BIM requires the definition of common rules for the collaborative use of the tool by all the relevant parties.
It is recommended that all the relevant participants of the project sign a multipartite agreement, where the role of each party involved is clearly defined. The agreement should be stepped down into subcontracts.
Regarding the BIM Protocol, please refer to FAQ5.
Regarding IP rights, please refer to FAQ10.
3. What are the standard form drafting bodies doing about BIM in their contracts?
Currently, there are no BIM specific standard terms for planning and construction contracts in France comparable to the model contract used in the international context, as for example the contractual terms developed by the Joint Contract Tribunal (JCT) and the Complex Projects Contract 2013 (CPC 2013) in the UK, or the Consensus DOCS 301 BIM Addendum from ConsensusDocs and the American Institute of Architects (US).
4. What are the professional bodies (Architects / Engineers) doing about BIM in their appointments?
In France, there are currently few, if any, BIM specific guidelines published by professional bodies. However, it is to be expected that this situation will change.
In July 2016, one of the first guidelines for project owners was published by the French Government for the use of BIM in public construction projects.
5. What is the BIM Protocol?
So far, there is not a formal/official BIM Protocol in France. The particularities of the contractual BIM Protocol may vary from project to project.
However, it can be assumed, that the BIM Protocol should define the following:
  • Key terms and key roles (i.e. BIM Manager, Model)
  • Hierarchy of the various contract documents
  • Duties and responsibilities of the different parties (i.e. project owner, project manager and Contractors)
  • The exact role and obligations of the BIM Manager
  • Information and data exchange
  • Use of the model
  • Intellectual property rights

6. Where does the BIM Protocol sit in the hierarchy of contractual documents?
As stated in FAQ.5, so far there is not an official BIM Protocol with parties involved having to formalise their relations by means of contracts. Therefore, the hierarchy of the various contract documents will require to be defined in the contract.
7. Who can be the BIM Manager / Information Manager?
The following list provides a general overview on the potential participants for the role of the BIM Manager in France:
  • Principal: To the extent that the principal (“Maître d’ouvrage”) has an expertise in BIM, the BIM management role can be ndertaken internally by the principal.

  • Project manager: As the main task of the BIM Manager is of a coordinative nature, it is quite practical that the Project Manager ("Maître d’oeuvre") is also responsible for the BIM management.

  • External BIM-Manager: The management of BIM can be carried out by an external stand-alone BIM-Manager. This could be useful, particularly if the BIM know-how of the participants stated above is limited.

8. What do I need to do about insurance?
A multitude of new risks and liabilities should be covered by insurances, such as data entry mistakes, data loss, consequences on the ten year guarantee and defects caused by mistakes in the model.
Insurance companies in France are therefore developing new policies, in particular by offering insurance for IT services in the building sector.
The development of special project insurance, including BIM, has also been recommended.
9. Do I need to be concerned about taking on any extra design liability?
Under articles 1792 et seq. of the French Civil Code, all Contractors involved in the construction of a building are automatically liable to the project owner (“maître de l'ouvrage”) for damages if there are defects which alter the solidity of the building or render it unfit for its use.
As a rule of thumb, each planner is liable for its own fault. However, given that all parties involved can contribute to and modify the model, determining the liability of each party in case of defects can become a real concern. This is likely to be dealt with by the software used having an ability to track what changes have been made and by what party.
The use of BIM requires a very precise description of the design services to be rendered and a precise differentiation of the extended interfaces and coordination between the participants.
10. Will BIM affect my ownership rights in my design or data?
Absent a specific regulation dealing with the ownership of the intellectual property rights related to BIM, the standard legal framework shall apply.
As several participants are involved in the BIM process, the ownership of the intellectual property rights pertaining to the designs and data created in the course of a project may give rise to some issues and affect the original ownership of rights if it is not properly addressed by the parties before the implementation of the project.
Copyright
Under French Copyright Law, the design or other works generated during the BIM process may be protected should such work be considered as original. The author of the protected work is considered as the owner of the intellectual property rights pertaining to the protected work (article L.111-1 of the French Intellectual Property Code).
French Copyright Law may grant copyrights to databases if their selection and arrangement is creative and constitute the author’s own intellectual creation (article L.111-1 of the French Intellectual Property Code). However the technical data within the databases, if they are not original, may not be copyrighted (see below (ii) Sui generis protection).
In the context of BIM, the author and the associated ownership of the copyrights may be difficult to qualify. Indeed, the contributions submitted by the parties during the BIM process may be protected by copyright and give such parties the quality of author or “co-author” with the associated ownership of the intellectual property rights.
Under French Copyright Law (article L.113-2 §1 of the French Intellectual Property Code), when several parties contribute to a piece of work, irrespective of whether or not each of the contributions is individualised, such work may be considered as a “collaborative work” (“oeuvre de collaboration”). In such cases, the copyrights will be jointly owned by the parties who made an original contribution to the work.
The work created in the course of BIM may be considered as derivative work or “composite work” (“oeuvre composite” as defined in article L.113-2 §2 of the French Intellectual Property Code). “Composite work” is work in which an existing work has been incorporated without the collaboration of the author. The author of the original work remains the owner of said work but the ownership of the whole composite work is vested in the author who made the new contribution. In the context of BIM, where the parties submit their contributions at different stages of the project, the last party who made an original contribution may be in a position to claim ownership of the whole work.
The contributions submitted by the BIM participants may fall under a third category of work protected by French Copyright Law, the collective work (“oeuvre collective” as defined in article L.113-2 §3 of the French Intellectual Property Code). The owner of the copyrights pertaining to a collective work is the person who has, on his sole initiative, conceived, supervised, edited, published and disclosed the work, and where the personal contributions of each of the authors involved in the creation cannot be individualised. In such cases, ownership of the contributions made by the different participants in BIM will be vested in one person.
Therefore, depending on the involvement and the contributions made by the parties, the ownership of copyrights may be affected.
As a general remark, it is worth mentioning that under French Copyright Law when a work is commissioned the copyrights are not automatically assigned to the commissioner. For this purpose the author (e.g. an Architect) and the commissioner must enter into a copyright assignment agreement or clause.
In this regard, it is recommended that the issues pertaining to copyright ownership be addressed in an agreement entered into between the parties which take part in the BIM process.
Sui generis” protection of the database
Under French Law the content of a database may be protected via a “sui generis” right provided that significant investments have been made to obtain such database (article L.341-1 of the French Intellectual Property Code).
The producer of the database, which is defined as “the person who takes the initiative and the risk of the investments”, is considered as the owner of the “sui generis” right over the database. In principle, if the work is subcontracted to a third-party the ownership of the database will remain with the producer.
Therefore, depending on the involvement and the role of the party, the ownership of the data submitted during a BIM process may be affected as well as the ownership of the database created by the contributions of the parties.
It is therefore recommended that the issues pertaining to the data and database ownership be addressed in an agreement between the parties participating in the BIM process.
Confidentiality provisions
Should any of the design or data disclosed during the BIM process not be protected by a proprietary right, appropriate contractual safeguards must be taken. Such protective measures are, inter alia, non-disclosure agreements entered into between the participants to the BIM process.
11. What data do I need to ask the Contractor to provide?
The data required depends on the project and will in general be laid down in the BIM Protocol (reference is made to FAQ 2).
12. What is the position re warranties / indemnities and is there any difference in a BIM project?
As BIM, in general, is not expected to affect the liability regime (see FAQ 9) no changes are to be anticipated to common clauses.
13. Will BIM have any impact on planning and length of time required for construction projects?
It is expected that BIM will reduce the planning and construction time, e.g. due to the fact that fewer errors and corrections are necessary (especially by the automatic clash detection) and due to the enhanced quality control and design coordination.
According to the information provided by the French Ministry of Housing, the length of building projects would be shortened by 7%, budget overruns would decrease by 40%, and the margin of error would be reduced by 3%. Thus, the use of BIM would allow on average to save up to 10% of the value of the contracts.
Furthermore, the precise recognition of the time data in the BIM model (4D) in real time may facilitate the project being finished on time.
14. How can I use BIM during the occupation phase of my building?
In France, there is the expectation that BIM will be of great benefit for the occupation of buildings. BIM can potentially facilitate the target-performance comparison of the project since BIM contains comprehensive and crucial data about several aspects of the building, e.g. room data, technical documentation, costs, selling data and administration guidelines. Furthermore, the BIM-system ensures that during the handover of the building no data gets lost.
In general, BIM affects not only the planning and construction phase; the model’s information is relevant to the entire life span of a property, including the building’s operation and maintenance after it has been completed and handed over.
BIM is, thus, not only substantially significant to the construction industry, but also to the real estate sector especially due to its information consistency.
15. Where can I find additional information about BIM?
The website of the French Housing Ministry provides information about the implementation of BIM in France: http://www.batiment-numerique.fr/
Furthermore, we recommend the following resources:
16. What will happen next?
As described under FAQ 1, the use of BIM in the public sector should increase throughout 2017 and beyond given the incentives recently implemented by the French Government.
However, the development of BIM will mostly depend on the goodwill of construction players and projects owners.
The increasing demand of training in BIM and the growing interest of the public sector could be a sign that the implementation and development of BIM in France could speed up in the near future.
Contacts
Aline Divo Arnaud Valverde
PartnerAssociate
T +33 1 47 38 56 95 T +33 1 47 38 42 85
E aline.divo@cms-bfl.comE arnaud.valverde@cms-bfl.com

Germany
1. Is BIM Relevant to me?
Currently, the use of BIM is not mandatory in Germany.
However, the Federal Ministry of Transport and Digital Infrastructure (FMTDI) has developed - in coordination with the private industry - an action plan with the objective to implement and disseminate BIM in Germany. The action plan shall introduce BIM in three steps:
  • Phase one is a preparatory phase until 2017 covering, inter alia, the setting of standards and the resolution of legal issues;
  • Phase two is a pilot phase lasting until 2020. On the basis of selected infrastructure projects, experiences in the practical usage of BIM shall be collected.; and,
  • With the start of phase three, BIM will be applied to all new (infrastructure) projects of the FMTDI from 2020 onwards.

Hence, the implementation of BIM is mainly driven by the public (infrastructure) sector.
By generating experience in the application of BIM and developing legal and technical standards, the action plans pursue the goal that BIM will be increasingly adopted by the private sector.
According to a recent survey of the Fraunhofer IAO in 2015, BIM is used currently in large-scale projects (above EUR 25 million) by about one third of the planners and building Contractors. However, especially in smaller planning offices, BIM is currently not widely used in Germany.
Furthermore, since April 2016 public awarding authorities are entitled to request from the Contractor the use of BIM for the planning and construction process in Germany (see Sec. 12 (2) sentence 1 of the Regulation on Public Procurement (“Vergabeverordnung, VgV”). The same applies to the procurement in the areas of transport, drinking water and energy (see Sec. 12 (2) “Verordnung über die Vergabe von öffentlichen Aufträgen im Bereich des Verkehrs, der Trinkwasserversorgung und der Energieversorgung – Sektorenverordnung, SektVO)”). However, the public awarding authorities are not obliged to exercise this right.
2. What do I need to do to my contracts to deal with BIM?
The decisive question is the arrangement of the contractual concept to be applied for the project. In general, two models have emerged:
  • all relevant participants of the project signing one multi-party agreement followed by a fully integrated programme of key dates for development and implementation of design contributions of the parties (“Mehrparteienvereinbarung”); or
  • a (standard) single planner agreement - as is the case in non-BIM projects - which, is linked with technical and legal BIM conditions laid down in several annexes (“vernetzte Standardeinzelverträge”)
.
The main structure of the (integrated) single contract concept in many cases applies the following structure:
The planner contracts provide that all of the respective participants of the planning and construction process have to consider BIM specific contractual addendums. Depending on the project, the following extensions may be considered, inter alia:
  • BIM specific legal conditions (“BIM-Besondere Vertragsbedingungen - BIM-BVB”);
  • The Principal-Information-Requirements (”Auftraggeber-Informations-Anforderungen - AIA”);
  • the BIM specifications (“BIM-Pflichtenheft”); and,
  • the BIM execution plan (“BIM-Abwicklungsplan – BIM BAP”).

The BIM-BVB contain uniform legal terms for all participants, e.g. in regard to the description of the BIM specific performance services, intellectual property rights (especially the grant of use rights), data protection, insurance, confidentiality duties or the definition of the different areas of responsibility of the parties involved in the planning process. The conditions laid down in the BIM-BVB constitute mandatory legal requirements for all single planner contracts. This concept, using uniform additional BIM conditions which are mandatory for all single contracts, can be found also in an international context, for example in the Consensus DOCS 301 BIM Addendum (US).
The AIA lay down, inter alia, the objectives for use of BIM, what data the principal requires for the project, in what level of detail the data has to be provided and which data format is to be used (see also FAQ. 5).
The BIM-Pflichtenheft also addresses coordination and technical requirements and may be tied up to the AIA.
The BIM-BAP defines, especially, the interfaces and roles of the different participants in the planning process. In general, the BIM-BAP will be developed on the base of the AIA. The BIM-BAP will be updated during the entire planning process. In an international context the fundamental structure of the BIM-BAP is comparable to the BIM Project Execution Planning Guide of the CIC Research Group 2010 (UK).
Contractors are obliged to ensure that the sub-contracts contain obligations requiring compliance with these vital documents in the BIM process.
The contractual structure and distribution described above is not prescribed by law. The drafting of these additional contractual documents is subject to considerations of expediency, the particular BIM Model to be used in the project and the extent of information to be processed.
However, as a basic rule we recommend that legal issues should be included in the BIM-BVB and requirements regarding the process of BIM, the exchange of information and technical aspects should be governed by the BIM-BAP.
3. What are the standard form drafting bodies doing about BIM in their contracts?
Currently, there are no BIM specific standard terms for planning and construction contracts in Germany comparable to the model contract used in the international context, as for example the contractual terms developed by the Joint Contract Tribunal (JCT) and the Complex Projects Contract 2013 (CPC 2013) in the UK, or the Consensus DOCS 301 BIM Addendum from ConsensusDocs and the American Institute of Architects (US).
However, with the help of the experiences gained during phase 1 and phase 2 of the action plan of the FMTDI (see FAQ1) legal and technical standards will be elaborated for the drafting of the BIM amendments.
We expect, for example, that with regard to the BIM-BVB standard terms, the issue of copyright, the distribution of liability risks and a checklist for handover of the data to the principal will be developed. Also guidelines and model examples for the drafting of the BIM-BAP will be worked out.
4. What are the professional bodies (Architects / Engineers) doing about BIM in their appointments?
In Germany, there are currently few, if any, BIM specific guidelines published by professional bodies. However, it is expected that this situation will change.
The association “Panen-bauen 4.0 – Gesellschaft zur Digitalisierung des Planen, Bauens und Betreibens mbH” acts as a BIM Task Group and will initiate projects for research and standardisation. It was founded in January 2015. Shareholders are leading associations of the building sector, inter alia, private interest groups, the Federal German Chamber of Architects (“Bundesarchitektenkammer”) and the Federal Chamber of Engineers (“Bundesingenieurkammer”).
The association of German Engineers (“Verein Deutscher Ingenieure (VDI)”) is developing guidelines (“Richtlinienreihe VDI 2552”) including, but not limited to, technical aspects with regard to the use of BIM. The requirements set up by these guidelines will be recognised as state of the art technology (“Stand der Technik”) in Germany.
The VDI task groups will also address questions about liability, copyrights etc. together with the role and the coordination of the participants in a BIM project.
Furthermore, regional chambers of Architects have begun to develop guidelines and model contracts for BIM projects.
CMS is in close collaboration with the key bodies dealing with BIM and is involved in the support and development of BIM in Germany.
5. What is the BIM Protocol?
The term “BIM-Protocol” is not used uniformly in Germany. Furthermore, the particularities of the contractual BIM Protocol may vary from project to project.
The BIM Protocol sometimes contains typical legal elements of the German BIM-BVB (see FAQ 3). In Germany, the meaning of the BIM Protocol is largely comparable to the BIM-BAP. Both the BIM Protocol and the BIM-BAP derive from the special characteristic of BIM – the necessary coordination of the exchange of contributions and information from the different participants. They answer the question “who delivers what, when, how and for what”. Therefore, they provide for, inter alia:
  • the way the information between the participants will be exchanged and what information shall be disclosed (i.e. whether the 3D model will be exchanged; time schedule for the exchange of the BIM-model);
  • who coordinates the BIM model;
  • the level of detail (LOD) and which data format is required (e.g. geometry and part attribute references (“Bauteilattribute”)); and,
  • what information has to be provided to the BIM management and the administration.

6. Where does the BIM Protocol sit in the hierarchy of contractual documents?
In Germany, there is no hierarchy in a formal sense. The contractual documents differ in regard to their content and, to some extent, to the timing of their preparation.
The following contractual documents may be particularly noted in Germany when applying the concept using (integrated) single contracts (see FAQ 3 for the detail concerning the contractual documents):
  • (standard) Architectural / Engineering contracts
  • BIM-BVB
  • AIA
  • BIM-Pflichtenheft
  • BIM-BAP

The BIM-BAP is the central document in defining the collaborative information sharing of the participants, as well as the technical requirements (see FAQ. 2 and 5). It specifies the coordination and technical requirements set up by the AIA and/or BIM-Pflichtenheft taking account of the concrete progress of the project. Consequently, with regard to the BIM-BAP in most cases there is at least a “temporal hierarchy” as the BIM-BAP may lead up to the AIA / BIM-Pflichtenheft. In contrast to the BIM-BAP, the BIM-BVB addresses legal aspects.
7. Who can be the BIM Manager / Information Manager?
In Germany’s experience, in most projects the Project Manager (“Projektsteuerer”) acts as BIM Manager and the object planner / Architect acts as coordinator.
The following list provides a general overview on the potential participants for the role of the BIM Manager in Germany:
  • Project manager: As the main task of the BIM Manager is of a coordinative nature, it is quite practical that the project manager (“Projektsteuerer”) is also responsible for the BIM management.
  • General / Object planner / Architect: In many cases, the BIM management can be served solely by the general planner (Architect) (“Objekt-/Generalplaner / Architekt”) when the general planner possesses sufficient BIM know-how.
  • Building Contractor: The building Contractor (“Bauunternehmer”) is involved in BIM management, especially in the event that the focus of the usage of BIM lies in the execution planning.
  • Principal: As far as the principal (“Auftraggeber”) possesses expertise in BIM, the BIM management can also be serviced internally by the principal.
  • External BIM-Manager: The management of BIM can be served by an external stand-alone BIM-Manager. This could be useful, particularly if the BIM know-how of the participants stated above is limited.

8. What do I need to do about insurance?
In general, there are no necessary changes in regard to the insurance regime. The liability principles of the participants of the project do not change due to the usage of BIM as a planning method (see FAQ 9). There are no material changes to the risk profile provided there is a precise definition of the different areas of responsibility of the parties.
Therefore, the requirement for ordinary professional liability insurance (“Berufshaftpflichtversicherungen”) and construction insurance policies (“Bauwesensversicherung”) applies as before.
In general, BIM planning services are covered by the professional liability insurance. However, in the event that the planner renders new services going beyond ordinary planning services which might not be covered by such insurances, we would recommend consulting an insurance specialist before signing the contract.
The insurance market in Germany has developed special project insurances (“Projektversicherungen”) for the entire project, especially in the context of BIM. These project insurances were not common in Germany up until now. The advantage of such insurance is that it is not necessary to determine which participant was responsible for the planning and design mistakes or errors. The costs of the insurance will be spread amongst the participants.
9. Do I need to be concerned about taking on any extra design liability?
In general, using BIM does not extend the liability for design and planning mistakes or for defects due to design errors. Each planner is liable for its own fault even if BIM underlies a strong collaborative approach. The parties maintain their own roles and responsibilities.
However, the use of BIM requires a very precise description of the design services to be rendered and a precise differentiation of the extended interfaces and coordination between the participants. If contractual obligations are not described sufficiently there is a higher risk for the planner to be liable for the contractually agreed use of the project.
An extra liability due to the implementation of BIM services is possible in exceptional cases, e.g. in the event that special partnering-models will be implemented or if the planner breaches his own duty to integrate and coordinate planning services (which has already constituted a liability of the planner).
10. Will BIM affect my ownership rights in my design or data?
In Germany, a distinction should be made between ownership rights, copyright and know-how protection.
Ownership right
According to the prevailing view, German law does not allow for the creation of ownership rights (“Eigentumsrechte”) in data, inter alia, in the building model (“Gebäudemodell”).
Copyright in the building model
However, under certain circumstances the digital 3D building model is protected by the German copyright law against, inter alia, an illegal reproduction or distribution. In order to be subjected to the German copyright law, the building model has to constitute a personal intellectual creation (“geistige Schöpfung”) which goes beyond an ordinary work and reaches a certain degree of individuality (“gewissse Schöpfungshöhe”) (see Sec. 2 (2) German Act on Copyright and Related Rights (“Copyright Act - UrhG”)).
Therefore, we recommend specifying in the contract, inter alia, the exploitation rights and the right of use (“Verwertungs- und Nutzungsrechte”) of the building model (see also Sec. 16, 31 UrhG).
If multiple planners have jointly created the BIM Model without it being possible to separately exploit their individual shares in the work, they are considered to be joint authors of the work (Sec. 8 UrhG).
Copyright in the database work / database
Virtual building models can be theoretically protected as database work (“Datenbankwerkschutz”) (see Sec. 4 (2) UrhG). With regard to the protection of the database work, it is also required that the work constitutes an act of an individual intellectual creation (“persönlich-geistiger Schöpfungsakt”). In particular, this is the case when the data or elements in the database are systemically and methodically arranged. However, in general, the BIM-Manager will only collect data from the predefined participants without making a selection decision. Further, it is argued that the building model is not protected as database work since the model constitutes a coherent work and does not consist of independent elements, which is required for the protection as database work.
With regard to the latter argument, it is also disputed in Germany, whether the producer of the BIM database, e.g. the principal or the BIM Manager, is protected by German copyright law (see Sec. 87a UrhG). In accordance with this provision, the producer of the database has, inter alia, the exclusive right to reproduce and distribute the database as a whole or a qualitatively or quantitatively substantial part of it. However, also under Sec. 87a UrhG it is required that the elements of the database have to be independent and that the database does not constitute a coherent work.
Know how-protection
As not all BIM services are protected by the German copyright law, in addition we recommend safeguarding the building model with effective know-how protection measures, since every participant has access to the project information every time he is logged in to the software. Useful instruments would include the use of effectively drafted Non-Disclosure Agreements (NDAs) and defining the rules of access to the model (“Zugriffsrechte”) in an agreement (as recommend by the FMTDI in its action plan).
11. What data do I need to ask the Contractor to provide?
The data required depends on the project and will in general be laid down in the AIA, especially the BIM-BAP (reference is made to FAQ 2).
12. What is the position re warranties / indemnities and is there any difference in a BIM project?
As BIM, in general, does not affect the liability regime (see FAQ 9) no changes are to be expected to common clauses.
In this respect it is worth noting that the Contractor has an additional obligation to provide a consistent 3D building model.
13. Will BIM have any impact on planning and length of time required for construction projects?
It is expected that BIM will reduce the planning and construction time, e.g. due to the fact that fewer errors and corrections are necessary during the construction phase (especially by the automatic clash detection) and due to the enhanced quality control and design coordination. There are several international studies examining the benefits of BIM which can be referred to. For example, a study by the Stanford University Center for Integrated Facilities Engineering (CIFE) on 32 major projects using BIM noted up to a 7 percent reduction in project time.
However, especially for Germany a reduction of the planning time is to be expected due to the change from a sequential planning process, which is applied until now in Germany, to an integrated approach which is required by the use of BIM.
Furthermore, the precise recognition of the time data in the BIM model (4D) in real time may facilitate the project being finished in time.
14. How can I use BIM during the occupation phase of my building?
In Germany there is the expectation that BIM will be of great benefit for the occupation of buildings. BIM can potentially facilitate the target-performance comparison of the project (“Soll-Ist-Vergleich”) since BIM contains comprehensive and crucial data about several aspects of the building, e.g. room data, technical documentation, costs, selling data and administration guidelines. Furthermore, the BIM-system ensures that during the handover of the building no data is lost.
BIM affects not only the planning and construction phase; the model’s information is relevant to the entire life span of a property, including the building’s operation and maintenance after it has been completed and handed over.
BIM is, thus, not only substantially significant to the construction industry, but also to the real estate sector especially due to its information consistency.
15. Where can I find additional information about BIM?
The website of the FMTDI provides information about the implementation of BIM:
We also recommend the following resources:
  • BIM Guideline (“BIM Leitfaden”) developed on behalf of the Bundesinstitut für Bau-, Stadt und Raumforschung (BBSR) 2013. The guidelines define terms, provide an overview about the state of play of the implementation of BIM in Germany and abroad, answer questions about data exchange and organisation of BIM based cooperation.


The guidelines are only a recommendation. See: http://www.bbsr.bund.de/BBSR/DE/FP/ZB/Auftragsforschung/3Rahmenbedingungen/2013/BIMLeitfaden/Endbericht.pdf?__blob=publicationFile&v=2)
16. What will happen next?
As described under FAQ 1, performance Level 1 (“Leistungsniveau 1”) in the implementation of BIM shall not be reached until 2020 when the FMTDI’s action plan is completed. With regard to the content of the action plan (three phases), reference is made to FAQ 1.
There are also general plans for targeting performance Level 2 after the implementation of performance Level 1 is finished. However, no concrete steps have been taken in that regard at the moment.
Nevertheless, as our close collaboration with bodies involved in the development of BIM, the development of legal advice on BIM projects and our monitoring of the different branches evolves, we expect that the implementation and development of BIM in Germany will speed up considerably in the short term.
Contacts
Nicolai Ritter Tino Beuthan
Partner, RechtsanwaltAssociate, Rechtsanwalt
T +49 30 20360 2509T +49 30 20360 2509
E nicolai.ritter@cms-hs.comE tino.beuthan@cms-hs.com

The Netherlands
1. Is BIM Relevant to me?
The use of BIM is increasing in the Netherlands. It is both public and private sector driven. It is already frequently used by major players in the construction sector, such as infra managers (e.g. ProRail), the Directorate-General for Public Works and Water Management (Rijkswaterstaat) and the Central Government Real Estate Agency (Rijksvastgoedbedrijf). Also other Employers and companies in the construction sector are using BIM more often.
This development presents a great opportunity for Employers to gain maximum value and for Contractors to work as efficiently as possible.
However, the adoption of BIM is not a legal requirement in the Netherlands and there are no government mandates for its use.
2. What do I need to do to my contracts to deal with BIM?
The contractual requirements to deal with BIM depend on the task within the construction project and the type of contract. In general the following topics are relevant:
  • description of the project (e.g. names of the project and parties, type of contract and applicable conditions like the Uniform Administrative Conditions for the Execution of Works (UAC));
  • collaboration agreements (e.g. about the transfer of information, which data to deliver/merge, the hardware and software requirements, the roles and responsibilities of the parties and the hierarchy of contractual documents and the information carriers);
  • agreements on model (e.g. structure of aspect models, the type of analyses and modelling agreements); and
  • legal aspects (e.g. the intellectual and related property rights and liability).

There are several Protocols and standards that provide guidance on how to deal with BIM in contracts.
3. What are the standard form drafting bodies doing about BIM in their contracts?
The current model contracts, based on either the UAC or – for integrated contracts – the UAC-IC (Uniform Administrative Conditions for Integrated Contracts), can be used when working with BIM, according to the Building Information Council (Bouw Informatie Raad).
For contracts with Consultants, Engineers and Architects the current model contract based on the TNR (“The New Rules”, concerning the legal relationship between client – Architect, Engineer and Consultant) can be used for working with BIM.
Because BIM is not defined yet in those model contracts and standard conditions (and these contracts/conditions will probably not be changed in the near future), proper arrangements should be made on the application of the building process and BIM in addition to those contracts by the contracting parties themselves.
Furthermore, please note that the Standard Job Description (Standaard Taakbeschrijving), which is used as a tool for the TNR model contract, does not sufficiently connect with BIM processes and responsibilities.
4. What are the professional bodies (Architects / Engineers) doing about BIM in their appointments?
There are currently only very limited (if any) BIM specific guidelines published by professional bodies. However, the Building Information Council (Bouw Informatie Raad), together with professional bodies from all relevant industry branches, established the “BIM desk” (BIM loket) which encourages and coordinates the use of BIM, functions as a helpdesk for BIM users and administers / manages the BIM standards.
5. What is the BIM Protocol?
There is no statutory BIM Protocol in the Netherlands. Parties are free to choose any BIM Protocol as guidance for the BIM team (i.e. the Employer/contracting authority and the contracting parties). There is great diversity in BIM protocols that are being used by the market. The different protocols all have different content and different terminology. To provide unambiguity, the Building Information Council / BIM desk recently published the “Nationaal Model BIM Protocol” (national model BIM Protocol) and the “Nationaal Model BIM Uitvoeringsplan” (national model BIM implementation plan). The model BIM Protocol is meant as a structure for project specific contract provisions concerning BIM. The model BIM implementation plan is a template which can be used by project teams to lay down their BIM working arrangements. The models use unambiguous terminology, which is in line with the developments in surrounding countries and the expected future European BIM standardization.
The models are published in a 0.9 version for consultation. The BIM desk intends to publish a 1.0 version by the end of 2017.
6. Where does the BIM Protocol sit in the hierarchy of contractual documents?
The BIM Protocol will be attached to the contract, which makes it binding on all the contracting parties. The BIM Protocol sits in the hierarchy of the contractual documents as agreed between those contracting parties.
7. Who can be the BIM Manager / Information Manager?
The role of the BIM Manager / Information Manager (and any other role with regard to BIM) can be assigned to anyone. Usually the Employer appoints a BIM Manager from its own organisation, one of the other contracting parties or an external BIM consultant.
8. What do I need to do about insurance?
A CAR (Construction All Risks) insurance provides a so-called umbrella coverage for all the stakeholders related to the construction. The insurance covers all damage to the construction and can also cover liability of all contracting parties/stakeholders. However, a CAR-insurance only comes into play when there is physical damage to the works and is therefore not sufficient in all cases.
A professional indemnity insurance on design and construct can provide coverage for the liability of all parties for faults with regards to BIM.
In addition, parties could choose to have corporate liability insurance, building design insurance, hidden defects insurance, but also insurance related to work materials, soil remediation, warranties and installations.
9. Do I need to be concerned about taking on any extra design liability?
In general, there is no need for concern. If parties use the model contracts and standard conditions as mentioned in the answer to FAQ. 3, the liability is the same as in other contracts under these conditions (i.e. no design liability for the Contractor when using UAC and a fit for purpose obligation for the Contractor when using UAC-IC).
However, because these models/standards are not drafted for the use of BIM this may leave a gap when using BIM. To avoid any uncertainty, we advise contracting parties to make additional agreements about liability for the design when using BIM.
10. Will BIM affect my ownership rights in my design or data?
It is likely that BIM will affect the allocation of intellectual property rights created in a BIM-project.
A work could be made by a Contractor according to the design by and under the direction and supervision of the Architect. If this is the case, the copyright remains with the Architect (article 6 Dutch Copyright Act).
However, it is also possible that the design, after having obtained consent from the Architect, is further developed by a Contractor, without direction and/or supervision of the Architect. The modifications made by the Contractor in this case have to be regarded as an adaptation of the design of the Architect (article 13 Dutch Copyright Act).
If these modifications, engineered by the Contractor, lead to a new and original work, this design might be protected by a copyright of the Architect (to the previous design) and a copyright of the Contractor to its (original) modifications.
Another scenario is possible when all Contractors/parties in a BIM project work simultaneously on the creation of a joint BIM design. If the contributions of each party can be distinguished, the parties are all copyright owner of their own contribution. If the contributions cannot be distinguished, the parties have a joint copyright in one and the same work (article 26 Dutch Copyright Act).
Under Dutch law, data does not constitute “property” because of the lack of materiality (Article 3:2 Dutch Civil Code). As such, ownership of data is therefore not possible. It is however possible to own intellectual property rights related to the data (e.g. copyright, database right).
We advise to make contractual arrangements with all BIM parties regarding the use of data in BIM.
11. What data do I need to ask the Contractor to provide?
The data required depends on the type of contract, the contracting parties and which BIM-construction stage the parties are in (preparation stage, design stage, realisation stage, exploitation stage, management stage and demolition & recycle stage). E.g. in the preparation stage, a contracting authority/Employer should ask contracting parties for information about communication, the planning and costs, which standards are going to be used and what data is going to be provided and in the design stage, information about the models, the measurements and proportions, the dimensions, the construction materials and other relevant data relating to the development of the models should be provided.
Please note that it is not only relevant what data must be provided, but also in what file format. We advise to make contractual arrangements with all BIM parties regarding the use of the same file format in BIM.
12. What is the position re warranties / indemnities and is there any difference in a BIM project?
The position regarding warranties and/or indemnities is not different in a BIM project, unless agreed otherwise by the contracting parties.
13. Will BIM have any impact on planning and length of time required for construction projects?
In general, BIM will have a positive impact on planning and length of time. With the use of BIM, the contracting parties involved are able to perform their work at the same time. BIM prevents, or at least reduces, any delay in the design, construct and exploitation stage by providing all parties concerned with the same information. By visualising and linking all the information, complications are easily recognisable for all parties and the consequences of those complications can be detected in an early stage.
14. How can I use BIM during the occupation phase of my building?
If agreed, the building owner and facility manager can utilise the data within the model during the occupation stage and after the occupation of the building. For example, a building owner may find evidence of a technical fault in the climate system. Rather than exploring the physical building, he may turn to the BIM model and see that a pump is located in a suspect location. In the BIM model, he may also find the specific pump size, manufacturer, part number and any other information ever researched in the past. It therefore creates benefits for the ongoing operation and maintenance of the building throughout its life.
15. Where can I find additional information about BIM?
The latest news and additional information about the use of BIM in the Netherlands can be found on the Building Information Council website (Bouw Informatie Raad): http://www.bouwinformatieraad.nl/.
And also:
16. What will happen next?
We expect an increase of the use of BIM in the Netherlands in the upcoming years.
The Central Government Real Estate Agency (Rijksvastgoedbedrijf) and Directorate-General for Public Works and Water Management
(Rijkswaterstaat)
already use BIM for all their DBFM(O) contracts and are planning to expand the use of BIM to other contracts as well.
We expect other (public sector) employers to follow this example and BIM to be an increasing factor in terms of competitiveness in the market.
A new development is the use of BIM in combination with the latest technology, such as Virtual Reality and holograms.
However, it all depends on the market players, since at the moment the Dutch government does not have any plans to prescribe the use of BIM in construction projects.
Contacts
Jeroen Berlage Maartje Speksnijder
Partner, AdvocaatSenior Associate, Advocaat
T +31 20 3016 306 T +31 30 2121 456
E jeroen.berlage@cms-dsb.comE maartje.speksnijder@cms-dsb.com

Poland
1. Is BIM Relevant to me?
Currently, the use of BIM is not mandatory in Poland.
The implementation of BIM is mainly driven by the private sector. The BIM standards have already been adopted by the private sector, however their application is voluntary.
Currently 3D design software with the application of BIM technology is used in Poland in numerous linear projects (roads, bridges).
However, work on implementing the relevant regulations and standards into the Polish legal system have already commenced.
From the point of view of the public sector, the implementation of BIM into public procurement contracts seems most important, so that the State Treasury, as the main beneficiary, can achieve the greatest possible savings within public purpose investments.
Undoubtedly, the main area of the BIM implementation is the construction industry.
The Polish Ministry of Infrastructure and Construction (MIC), assisted by the Public Procurement Office, has initiated a cycle of expert working meetings aimed at assessing and confirming the demand for the implementation of BIM into the Polish legal system, as well as an analysis of different potential scenarios for the implementation of BIM and gathering views, experience and good practices from different parties in respect of BIM.
Moreover, in the Polish Ministry of Infrastructure and Construction (MIC), as part of the Knowledge, Education, Development 2014-2020 Operational Programme, a project called “Strengthening the Legislative Potential Within the Scope of the Investment and Construction Process – Stage I” has been carried out since 2015. As part of the project, the employees of the Construction Department held a series of study visits, including to the United Kingdom, Sweden and Denmark, during which they gathered information on the experience of other European legislations as regards the implementation of BIM in the construction industry.
By the end of 2016, the Polish Ministry of Infrastructure and Construction plans to prepare an analysis that will cover issues related to the implementation of BIM, including, among other things, an analysis of Polish regulations from the perspective of the current possibilities of applying BIM technologies in the Polish construction industry, in particular as part of the investment projects performed by public investors, the specification of terms and conditions that allow for the implementation of BIM into public procurement contracts, the consequences of its implementation, potential costs as well as the industry’s readiness to apply BIM. The project team includes representatives of the scientific community, BIM practitioners with experience in applying BIM throughout the facility’s life cycle, economists and specialists in the application of quantitative and qualitative methods of data analysis.
Due to the need to implement the provisions of Directive 2014/24/EU, measures have been taken to implement BIM into investment processes in Poland. The Public Procurement Law, amended in this respect, recommends that BIM technology be applied while carrying out public procurement contracts in the area of construction investment projects, without expressly referring to the name of that technology.
The amendment of the Public Procurement Law, however, should be assessed as a milestone from the perspective of implementing BIM, as for the first time a different system of evaluating bids is introduced, allowing the investors to select the most favourable bid not only on the basis of its price, but also taking into consideration other parameters (among other things the quality, functionality, technical parameters, environmental, social and innovative aspects, servicing, the date of completing the contract and the operation costs) the quality of which may result from the application of BIM.
2. What do I need to do to my contracts to deal with BIM?
The investor must declare its intention to use the BIM technology at the tender procedure stage by means of including the BIM requirement in the Terms of Reference (SIWZ).
A relevant form of the construction contract should be developed, the shape of which would depend on the selection of one of the possible BIM models. If such models do not function in the Polish environment, it is possible to refer to models developed in other European countries which include the following:
  • entering into one multilateral contract, common for all participants to the investment project; or,
  • signing a typical contract for design works with additional attachments (documents) regulating the cooperation between all the participants to the investment process within the scope of BIM.

The BIM documentation should also include additional documents e.g. the BIM Protocol (see FAQ 5) or the BIM Execution Plan (BEP).
The BIM Execution Plan includes, among other things:
  • the composition of the basic group involved in the project;
  • information on the project and its participants;
  • the project objective and tasks;
  • cooperate coordination plan;
  • project stage description;
  • description of the modelling program;
  • a list of the planned models and their components;
  • data on the precision of the individual modelling phases;
  • model analyses plan;
  • spatial collision identification process plan;
  • plan concerning the update of component models for the final handover (the investor must receive the current As-Built model);
  • project cooperation plan;
  • list of target project cooperation formats and handover formats; and
  • coordination meetings procedure and handover dates

It is also important to include a relevant glossary, i.e. to both extend the definitions regarding BIM specifically and to introduce standardised classifications of construction terms compatible with the BIM computer software standards. This results from the necessity to integrate the terminology for the entire design and construction process so that each of its participants clearly understands what he/she receives from other participants and is aware of the items that are to be forwarded. Meanwhile, a uniform construction classification system that would be compatible with a detailed, abstract computer standard system for BIM processes currently does not exist in Poland.
One should also adopt a different definition of a general designer, whose role is declining, in favour of increasing the role of discipline-specific designers. Such designers should also be responsible for economic issues, i.e. meeting the target cost. Otherwise, the Architect would have to assume the responsibility of the discipline-specific designer for the economic evaluation of the designer’s solutions, i.e. installation solutions, which is practically impossible.
One solution would also be to engage the future Contractor to prepare the BIM model.
3. What are the standard form drafting bodies doing about BIM in their contracts?
The legislator’s intention was to impose an obligation on the President of the Public Procurement Office to publish exemplary forms of contract documents (Article 154 section 10 of the Public Procurement Law). However, so far, this initiative has been taken by the National Contract Forum (Narodowe Forum Kontraktowe). The National Contract Forum, as a non-governmental organisation, plans to establish an entity that would be responsible for creating and promoting sustainable contract forms, descriptions of the subject of the procurement contract and good practice for carrying out investment processes.
To date, however, no forms or standards have been created, for instance such as those drafted by FIDIC (Fédération Internationale Des Ingénieurs-Conseils) that are in general use in Poland with respect to investment contracts, in particular public contracts.
So far the plans for drafting model contract terms in accordance with the Integrated Project Delivery principles are only among the objectives adopted by social organisations (see FA$ 4).
4. What are the professional bodies (Architects / Engineers) doing about BIM in their appointments?
The BIM for Polish Investment Projects Association (plbim.org) started working on preparing recommendations for amendments within the scope of Construction Law and Public Procurement Law that would allow for the application of BIM technology in Polish infrastructure investment projects within the next two years. Such recommendations will include the adoption of the required standards, codes, classifications and norms, the development of education principles in higher education, training for all the required representatives of authorities and governmental agencies and, most of all, the promotion of benefits for all the participants in the investment process.
The statutory objectives of BIM for the Polish Investment Projects Association include the following elements:
  • the development of inter-discipline standards required to use BIM technology within the scope of issuing administrative decisions under Construction Law and Public Procurement Law.
  • the development of model contract terms on the basis of the IPD principles as an alternative for the popular Design and Build conditions or the institution of a Contract Engineer.
  • the development of the principles of applying, within the scope of carrying out construction investment projects, the Lean Construction methods and Agile Project Management methodologies.

BIM stirs extreme emotions in the design industry. The Polish Chamber of Architects, which performs the role of a professional corporation, loudly protests against the implementation of such technology. However, some Architects that are members of other organisations (e.g. the Association of Polish Architects (SARP)), support this initiative.
In 2015, the V4 BIM Task Group also started its activity in Poland (the Polish branch of the V4 Group forms a part of the Visegrad Group BIM Task Group). It is a social (expert) cooperation initiative of two scientific and technical organisations (SARP and the Polish Association of Engineers and Construction Technicians (PZITB)) as well as the Building Control Inspector General. The agreement signed by the above parties is aimed at:
  • making a joint effort to prepare drafts of legal regulations and submitting amendments and requests to the relevant authorities and institutions;
  • initiating scientific and research works concerning the design of civil structures; and,
  • determining the communication strategy to target groups.

The SARP and PZITB expert team presented the “General Assumptions of the Process of Implementing BIM in the Performance of Public Procurement Contracts for Construction Works in Poland”. On the group’s own initiative, a motion was submitted on the draft amendment to the Public Procurement Law. This included a provision stipulating that in the case of public procurement contracts for construction works or in the case of competition, the Employer should require the application of tools for electronic modelling of construction data or similar. It also suggested that a definition for “tool for electronic modelling of construction data” be introduced into the Public Procurement Law. Ultimately, the amendment of the Law only included a provision stating that “In the case of construction works contracts or competitions the Employer may require the application of tools for electronic modelling of construction data or similar tools” (see FAQ 1).
The Polish branch of the V4 Group also established very close cooperation with ICE, a British Engineering organisation.
Presently, the activities of the V4 BIM Task Group concentrate on the development of the classification standards recommended in Poland, on promoting activities and cooperation with local governments and state administration in the process of developing the principles of good practices and regulations concerning BIM.
The V4 BIM Task Group is also engaged in drafting background documents on the basis of British forms that will be further adjusted to the regional conditions of the V4 and in determining the principles of using BSI’s copyrights in the translation, adaptation and publication of documents such as BS and PAS documents.
5. What is the BIM Protocol?
In Poland, the BIM Protocol has not yet been standardised (like all other BIM-related issues). The assumption is that it should be attached to the contract as its bible or constitution that specifies all definitions, roles and requirements concerning the individual parties, the degree of detail of the projects, the procedures and cooperation assumptions.
The BIM Protocol drafted by the Employer also specifies the principles of exchanging information; the schedule and scope of the BIM model deliveries; and, describes the required level of detail. It is also anticipated that for the purposes of executing BIM new professions such as BIM Manager or BIM Coordinator will be established. The purpose of drafting the BIM Protocol is to enable the development of the BIM model for all stages of the investment project; to perform the integrated design assumptions; to define authorised users; and, to indicate the obligations of the parties as well as to define the schedule and the scope of supplies.
Currently, the New Technologies Committee (Komisja ds. Nowych Technologii – KNT) established in December 2015 at the Polish Engineers Association of Advisors and Experts (SIDiR) which cooperates with the V4 BIM Group, is involved in preparing a draft of the BIM Protocol for the Polish environment.
6. Where does the BIM Protocol sit in the hierarchy of contractual documents?
In principle, the tender documents are as follows (alternatively with a different order of significance):
  • terms of reference (SIWZ)
  • project documentation
  • technical specification for the performance and acceptance of the works
  • Contractor’s bid
  • contract for construction works.

The BIM Procotol will ultimately form a part of the Employer’s Terms of Reference (SIWZ) and become, in a sense, the constitution for the given investment project carried out as part of the BIM process.
7. Who can be the BIM Manager / Information Manager?
The BIM Manager is responsible for the flow of adequate digital information on the building between the parties to the process and is therefore a “guardian of quality”. Additionally, the BIM Manager’s role is to ensure the evaluation of the information obtained in terms of the costs, schedules and all necessary conditions, e.g. environmental or energy conditions.
Project-wise, a BIM Manager may be an Architect, a third party, a trusted person or a knowledgeable professional on the investor’s side. A BIM Manager should also be on the Contractor’s side; however, it can be one and the same person.
8. What do I need to do about insurance?
At this stage it is difficult to predict whether there will be a need for any modifications to current insurance arrangements schedules and all necessary conditions, e.g. environmental or energy conditions.
9. Do I need to be concerned about taking on any extra design liability?
At present, without any legal regulations, it is difficult to predict whether any additional liability is going to arise. Even though each Engineer or Contractor assumes liability for his/her part of the project in terms of the provided information, ultimately once such information is incorporated in one joint and complementary project, one person should be designated to analyse all the data and guarantee the compatibility and compliance with the Employer’s assumptions.
10. Will BIM affect my ownership rights in my design or data?
Multi-discipline components of the BIM model may appear a challenge for protecting copyrights. The model of the investment project is made up of several models that are combined by reference into one. Each person that carries out the work related to the given discipline-specific model is the holder of copyrights and retains such copyrights, as only the model in the IFC format, that is not subject to modifications, is provided for coordination and management purposes.
Such model is regarded as the one that functions best. The data exchange consists in the exchange of files which allow solely for the analysis of such data but not its editing. In any case, in order to ensure full protection, the amendment of the Copyright Law may prove to be necessary.
The issue concerning the ownership and authorship of the model itself consists in the fact that the ownership of the model is usually transferred to the investor (that will need it for the entire life cycle of the facility) while the components of the model are subject to the authors’ copyrights. Such provisions may be individually modified, however, in order to do so, it will be necessary to develop separate contract clauses, consistent with the spirit of IPD.
In accordance with the Copyright Law applicable in Poland, the given designers are the holders of the copyrights to the models (moral rights), while officially the investor may only acquire the rights to use the model (commercial copyrights) and only for a specific period of time.
11. What data do I need to ask the Contractor to provide?
Primarily, the investor must indicate the desired degree of detail in the developed BIM model. Additionally, the investor should decide on the given data exchange format (e.g. IFC).
12. What is the position re warranties / indemnities and is there any difference in a BIM project?
Presently, it is difficult to predict whether a necessity will arise to introduce different reservations; however, it is not excluded from the perspective of the potential changes to the division of liability (see FAQ 9).
13. Will BIM have any impact on planning and length of time required for construction projects?
Statistics show that the use of BIM technology in the design and performance of investment projects gives realistic chances of reducing the cost by as much as 20%, and the investment in BIM at the stage of carrying out the construction project gives on average a 20-fold return on investment.
Apart from the financial aspects, BIM also allows for saving a considerable amount of time and enables a reduction of the design phase by, on average, 7%.
14. How can I use BIM during the occupation phase of my building?
During the occupation phase of the building, projects completed with BIM technology ensure effective management of the building and its costs of use. Following the completion of the construction, the owner/administrator receives a tool in the form of a virtual replica identical to the actual facility (the so-called as-built model).
A number of facility management tools allow for importing databases such as the BIM models and the communication with augmented reality equipment and even direct automation control in intelligent buildings via the Internet in a multidimensional environment.
Information crucial for the purposes of building administration is implemented into the BIM management model. The model, in the form of an application for mobile devices, helps to find one’s way in the facility.
Significant information such as: links, access to an external database, service technician contact number, guarantee validity date etc. is attached to each element of the model. With the use of the model, one can almost automatically generate a list of equipment, office elements or the floor area.
The analyses performed to date have indicated that the implementation of BIM in facility management allows for savings as much as 50% of the building management costs.
15. Where can I find additional information about BIM?
Apart from the publications on the current status of BIM implementation that are available on the website of the Public Procurement Office and the Ministry of Infrastructure and Construction, the majority of information is available on the individual websites of discipline-specific non-profit organisations of Engineers and designers which support the implementation of such technology and include the following:

16. What will happen next?
The implementation of BIM technology in Poland is only at a very early stage. Therefore, it is difficult to predict progress in this area, the timeline and scope of the implementation allowing for a wide application of this methodology as well as the contract model that will be selected for the purposes of carrying out investment projects on the basis of BIM.
Contacts
United Arab Emirates
1. Is BIM Relevant to me?
The UAE is a federation of seven individual Emirates. As yet, there has been no federal implementation of BIM across the UAE generally. To date, the only Emirate within the UAE that has prescribed the implementation of BIM is Dubai.
BIM was first introduced as a requirement in Dubai in 2013 by virtue of Dubai Municipality’s Circular No. 196, which provided for the application of BIM for the “architectural and MEP work” on:
  • buildings above 40 floors;
  • buildings with areas larger than 300,000 square feet;
  • specialist buildings such as hospitals and universities; and
  • all buildings requested on behalf of a foreign office.


The mandate was then updated in 2015, when the Dubai Municipality issued Circular No. 207, which states that BIM is to be used in relation to the “architectural and mechanical works” on:

  • buildings above 20 floors,
  • buildings and facilities and compounds with areas larger than 200,000 square feet;
  • buildings and special facilities such as hospitals and universities;
  • all government projects; and
  • all buildings and projects that are requested from a foreign office.

Circular No. 207 also stipulates that the provisions of Circular No. 196 will remain in effect and that consulting and advisory offices are responsible for its application, suggesting that the onus for adhering to the BIM mandate will fall to the architects and engineers on a project.
Importantly, neither of the circulars stipulate any minimum requirements in respect of the BIM level which must be applied. This omission is presumed to have been deliberate, so as to allow relevant entities to become familiar with BIM before a minimum level is applied. As yet, it is uncertain if or when the Dubai Municipality will issue any directive as to the minimum BIM level required for relevant projects.
Although no minimum standard is required, the benefits of BIM are already apparent in relation to Dubai based developments. BIM was recently utilised for the prestigious Dubai Opera project, where it was found to resolve substantial coordination issues.
In addition, major projects in other Emirates have also incorporated BIM. For example, the US$ 3bn Midfield Terminal Building and the US$100m Louvre Museum, both in Abu Dhabi. The fact that BIM was used on these projects, without having been mandated by the Abu Dhabi government, indicates its increasing status as a tool which can aid the efficiency of the construction process.
2. What do I need to do to my contracts to deal with BIM?
Although BIM is mandated in Dubai, the minimum BIM level has not been prescribed. No guidance has been issued as to how BIM should be implemented into construction contracts in Dubai and no UAE specific Protocol has been issued.
Therefore, where BIM is required (either by the Dubai Municipality mandate or an Employer), the parties will need to determine themselves how it should be implemented into the contract. In doing so, the contracting parties will need to consider:
  • clauses relating to BIM management responsibilities;
  • the selection of and incorporation of a Protocol;
  • the provision of documents; and
  • the hierarchy of contractual documents.

3. What are the standard form drafting bodies doing about BIM in their contracts?
The FIDIC forms of contract are widely used across the UAE. The General Conditions of these standard forms are often subject to extensive modifications.
The FIDIC contracts do not include provisions for BIM. However, there are FIDIC committees which have been asked, ahead of the release of FIDIC’s updated editions of the Rainbow suite (expected later this year), to consider how best to approach BIM. FIDIC may include suggested amendments to the General Conditions, dealing with BIM, in the updated Guidance Notes. Alternatively, FIDIC may issue its own BIM Protocol. In any event, the parties will still need to agree how to incorporate BIM into their contracts, with each party’s legal advisers assisting in shaping the style and scope of the BIM provisions.
4. What are the professional bodies (Architects / Engineers) doing about BIM in their appointments?
The FIDIC standard form consultant’s appointment (The White Book) does not, as yet, deal with BIM. Architects and Engineers should, therefore, define in their appointments, on a case by case basis, the agreements, practices, systems and processes relating to BIM, including:
  • procedures (data) quality control (validation and verification);
  • contract methodologies (including link to classifications of objects in BIM model);
  • agreements on synchronisation of data;
  • agreements on transfer of the model (including planning) to the next phase in the building process;
  • project planning and consequences for model(s) and data;
  • Document Management System (paper/digital)
  • communication and consultation structures; and
  • agreements on copyrights and the transferability of the copyrights.

5. What is the BIM Protocol?
A BIM Protocol is a document which sets out the requirements imposed on the parties in respect of the scope and application of BIM. There are no BIM Protocols published which apply specifically to the UAE market. The parties will therefore either need to adopt a standard Protocol, such as the UK’s Construction Industry Council’s BIM Protocol (modified to suit their needs), or create bespoke terms for the implementation of BIM.
6. Where does the BIM Protocol sit in the hierarchy of contractual documents?
No UAE BIM Protocols have yet been published. Any Protocol which is adopted or prepared on a bespoke basis, will need to be incorporated into the contract as per the parties’ agreement, with due consideration given to whether its provisions prevail in the event of a conflict.
7. Who can be the BIM Manager / Information Manager?
Dubai is the only Emirate to have mandated the use of BIM. However, it has not stipulated any express requirements in respect of the BIM Manager’s / Information Manager’s role, other than to say consulting and advisory offices are responsible for the application of the BIM mandate. In practice, the role of the BIM Manager/Information Manager (and any other role with regard to BIM) can be assigned to anyone. Usually the Employer appoints the BIM Manager / Information Manager from its own organisation, one of the other contracting parties or an external BIM consultant.
8. What do I need to do about insurance?
Little to no information exists as to whether UAE insurers will require changes to policies as a result of BIM implementation in projects. Parties working on projects utilising BIM would be best advised to notify their insurers/brokers to assess whether any changes in coverage will be required.
9. Do I need to be concerned about taking on any extra design liability?
Those standard form contracts which have been updated to reflect BIM requirements (e.g. JCT and NEC3), have not provided for enhanced design liability. Further, as set out above, FIDIC, which is the most widely used standard form in the UAE, has not, to date, provided for the use of BIM - although, we do expect FIDIC to address BIM in the updated Rainbow suite to be issued later this year. Parties in the UAE should therefore consider whether the proposed contract confers additional design liability in conjunction with the use of BIM, on a case by case basis.
10. Will BIM affect my ownership rights in my design or data?
Ownership rights will largely depend upon the contractual provisions agreed to, including the terms of any Protocol incorporated. It is advisable that the parties ensure specific provisions in respect of BIM related ownership are included in the contract to avoid disputes.
11. What data do I need to ask the Contractor to provide?
The responsibility for providing data and the types of data required will generally vary depending upon the specific project. The parties should agree what data is realistically required in order to avoid excessive amounts of irrelevant material being provided which will undermine the efficiency of the process.
12. What is the position re warranties / indemnities and is there any difference in a BIM project?
The position regarding warranties and/or indemnities is not different in a BIM project, unless agreed otherwise by the contracting parties.
13. Will BIM have any impact on planning and length of time required for construction projects?
By enhancing collaboration between parties and the sharing of information, it is generally accepted that the use of BIM will be beneficial in reducing the time required for the planning and construction of projects in the UAE.
The success of BIM in reducing project timescales will depend upon how it is implemented and used. Parties must therefore ensure that their staff are fully trained and able to apply the principles of BIM to the relevant project.
14. How can I use BIM during the occupation phase of my building?
BIM in the UAE is in its infancy, with little being known of the scope of using BIM during the occupancy of a building. From an international perspective, the use of BIM in relation to the occupation phase of a building is one of the key drivers for its implementation, with benefits such as enhancing the efficiency of facilities management after handover. There is nothing to suggest that these benefits will not apply to UAE projects where BIM is properly implemented.
15. Where can I find additional information about BIM?
As BIM has not been mandated at a federal level across the UAE, there is limited country-specific information on the subject.
16. What will happen next?
As mentioned above, the Emirate of Dubai has taken the lead in mandating the use of BIM in certain categories of projects, with BIM already benefitting major developments, such as the Dubai Opera project. Whether or not the Dubai Municipality issues further circulars stipulating a minimum BIM level remains to be seen. However, in the meantime, we wait to see how FIDIC seeks to address BIM in the updated Rainbow suite of contracts - whether through suggested amendments to its General Conditions or the issuance of a FIDIC BIM Protocol.
Furthermore, as BIM has also been used on a number of high profile projects in Abu Dhabi, it is likely that the other Emirates, particularly Abu Dhabi – and possibly the UAE on a Federal level - will also mandate the use of BIM in the future.
Contacts
United Kingdom
1. Is BIM Relevant to me?
Public Sector
There are both UK and Scottish Government mandates for the use of BIM.
The UK Government produced its construction strategy in 2011. This was a wide ranging document aiming to deal with studies which had indicated that the UK was not obtaining full value from public sector construction. It included a programme of measures the Government wished to take in order to reduce costs by up to 20%. Amongst other measures, this provided that the Government would require fully collaborative 3D BIM (with all project and asset information, documentation and data being electronic) as a minimum by 2016.
In parallel with this was the Government Soft Landings (GSL) policy of September 2012. This recognised that the ongoing maintenance and operational cost of a building during its lifecycle far outweighed the original capital cost of construction. GSL identified the need for this to be recognised through early engagement in the design process. A recommendation was put forward that the GSL policy should apply to all new central Government projects and major refurbishments and should be implemented by central Government departments during 2013 working towards a mandate in alignment with BIM in 2016.
The aim of this was to align the interests of those who design and construct an asset with those who subsequently use it.
From October 2012 onwards, responsibility for GSL moved to the Government’s BIM Task Group in order to ensure that BIM and GSL were in alignment and to allow work towards the combined mandate in 2016.
The Scottish Government issued its BIM implementation plan in September 2015. This set out the strategy for public sector projects in Scotland to adopt BIM Level 2 by April 2017.
Private Sector
BIM will be an increasing factor in terms of overall competitiveness in the market.
In some respects, the private sector has been leading the way here although in the context of a “lonely BIM” model. What this means is that the private sector Contractors and also some parties lower down the supply chain, have identified the benefits of BIM Engineer- both financial and in programme terms - through the design process. It is being used to an advantage in terms of being able to effectively competitively bid projects.
Many of the larger main Contractors within the UK have been using BIM for a considerable period of time. However this is not BIM in the sense of the Government mandated model whereby the Employer works with an integrated team to generate benefits in terms of savings for the project as a whole. Further, the “lonely BIM” approach does not necessarily have the same benefits the Government is seeking in terms of the whole lifecycle of the project but tends to focus mainly on the construction phase and the savings which can be achieved during that process in time and money.
To date, the industry appears to have been relatively slow in dealing with BIM in the facilities management sector. This is perhaps because many of the private sector developers are not necessarily involved in buildings which they then wish to occupy and use but instead buildings which they wish to either sell or rent commercially meaning that they are less interested in the lifecycle costs of maintenance and operation of the building.
2. What do I need to do to my contracts to deal with BIM?
The BIM Protocol is a key requirement for a project involving BIM. In the UK, the most favoured Protocol being used is the one prepared by the CIC. It would be expected that the Protocol would be incorporated into contracts. Where a BIM Protocol is incorporated, there are a number of areas where standard forms will require drafting changes to ensure there are no clashes between contract conditions and Protocol and that the contract works as a whole. These include:
  • Definitions.
  • Clarity over who is performing new roles (e.g. Information Manager)
  • Design submission procedures.
  • Information required schedules.
  • Communications Protocol.
  • Documents/Data – what are to be provided, by who, when, where and how.
  • Hierarchy provision- to provide for what takes precedence if there are conflicts between the contract provisions and the Protocol

This also requires to be stepped down into subcontracts to ensure that the whole supply chain is under the same obligations.
Employer’s Information Requirements form part of the CIC BIM Protocol and are a key document required to set out BIM – related requirements.
3. What are the standard form drafting bodies doing about BIM in their contracts?
The approach of the standard form drafting bodies has varied.
JCT (Joint Contracts Tribunal) first published a Public Sector Supplement in 2011 introducing brief BIM-related amendments. The Scottish equivalent, SBCC (Scottish Building Contracts Committee), published an equivalent Public Sector Supplement for Use in Scotland, also in 2011. The BIM provisions in these are incorporated and extended in the 2016 edition of the JCT form.
The contract amendments provide for the inclusion of “any agreed Building Information Modelling Protocol” as a contract document or within the Employer’s Requirements.
The JCT approach is not to specify any particular Protocol but to allow parties to decide which to incorporate.
NEC3 published a guide “How to use BIM with NEC3 Contracts”. The NEC3 contract assumes adoption of the CIC BIM Protocol.
It suggests that the parts of the Protocol which deal with technical requirements should be included within the Works Information, Subcontract Works Information or the Scope. This allows amendments to be instructed which can be dealt with as compensation events under the contract.
The parts of the Protocol which modify conditions of contract which deal with parties’ rights and liabilities should be added by Z clauses into the contract conditions. This prevents them being amended unilaterally.
The Guide recognises there is a need for compatibility between the Protocol and the contract and also the potential need for additional compensation events, for example for events preventing compliance with delivery of models in accordance with the Protocol.
The CIOB Contract for Use with Complex Projects includes detailed provisions for use of BIM including provisions related to the role of the design coordination manager, provision of a common data environment, software selection, suitability and integrity, archiving of each completed level of development, maintenance and updating of the model, indemnification of other design users in respect of Contractor design and notification of clashes.
This contract allows parties to select the Protocol of their choice but provides for a default option if none is selected, namely the American Institute of Architects’ Protocol.
The FIDIC contract so far has not made any specific provision for BIM.
The PPC 2000 contract, which is a multi party contract form, was amended by addition of an Appendix 10 in 2013 which makes provision for BIM. This is the contract which was used on the UK Government pilot projects at Cookham Wood and North Wales Prison.
The JCT Constructing Excellence contract is considered to be one which may be suitable for use in a BIM environment given its focus on collaborative working concepts. There have so far been no BIM-specific amendments made to it.
All of the above contracts focus only on the construction phase of buildings. So far none of the standard form drafting bodies have produced a facilities management contract to deal with the operational or “in use” phase of the building. It is anticipated this will follow given the focus on this within the Government documentation regarding BIM.
This is likely to raise issues regarding the interface between the construction Contractor and the FM Contractor and liabilities during the interface period.
4. What are the professional bodies (Architects / Engineers) doing about BIM in their appointments?
The RIBA (Royal Corporation of British Architects) Plan of Work 2013 included new tasks and stages including activities required for BIM. These include agreement of the Design Responsibility Matrix; information exchanges; preparation of the Project Execution Plan including technology and communication strategies; and, consideration of common standards.
Tasks are included for UK Government Information Exchanges. This was added to encourage consideration of the stages at which the UK Government requires information to be exchanged and because it is looking for data rich information which can be used during occupancy. The principal means of delivering this information will be COBie which is effectively a spreadsheet containing data about each aspect of the building.
Stage 7 within the Plan of Work is a new stage called “In Use”. It recognises the benefits of capturing design information to assist with the operation and use of a building. It includes a post occupancy evaluation and review of performance. It also requires updating of project information as required until the end of the building’s life.
5. What is the BIM Protocol?
As part of the Government’s push towards implementation of BIM, much has been done in terms of publication of technical documents. This includes the CIC Building Information Model Protocol.
The BIM Protocol is a key part of the BIM contractual structure, intended to be incorporated into appointments between the Employer and the project team and, in turn, the supply chain.
The CIC Protocol includes a number of key provisions where there is a reasonable likelihood of there either being a clash between it and the standard form contract provisions or where some addition is required to the standard form conditions to recognise Protocol requirements. For example, the Protocol introduces a new Information Manager role.
There are provisions concerning Employer and Contractor obligations including provision of design information in the form of models, applicable standards, Employer’s Information Requirements, delivery of models, archiving procedures and resolution of conflicts.
The Appendices to the CIC Protocol include:
  • Levels of Detail and the Model Production and Delivery Table; and,
  • Information Requirements (which include the Employer’s Information Requirements, BIM Execution Plan, incorporating reference to PAS 1192:2-2017 - Specification for information management for the capital/delivery phase of construction projects using building information modelling and Project Procedures).

A Second Edition of the CIC Protocol is currently being prepared.
6. Where does the BIM Protocol sit in the hierarchy of contractual documents?
The CIC BIM Protocol provides that in the event of a conflict between the Protocol and other contract documents, the terms of the Protocol prevail. This is the opposite to the position in most standard form contracts.
In making drafting changes to standard forms, a hierarchy provision is required to provide for what takes precedence if there are conflicts between the contract provisions and the Protocol. That may require to be considered on a clause by clause basis to ensure that any conflicts or inconsistencies are appropriately dealt with.
7. Who can be the BIM Manager / Information Manager?
The CIC has published an Outline Scope of Services for the Role of Information Manager. This anticipates that the role of Information Manager is delivered as part of an existing appointment by a capable party.
The role involves duties concerning the exchange of information through a Common Data Environment, establishing an information structure and maintenance standards for the information model, maintenance of the information model and management of the Common Data Environment processes and procedures.
There are roles concerning project information management in relation to information structure such as: software platforms appropriate to meet Employer’s requirements and the project team’s resources; responsibility for provision of information and level of detail of information required; and, the process for incorporating as constructed, testing, validation and commissioning information.
The Information Manager deals with integration of information within the project team and coordination of information by the design lead.
The role also involves supporting the collaborative working approach.
Finally, the Information Manager would be involved in establishing information exchange processes and participating in and complying with project team management procedures and processes such as: performance management; change management procedures; attendance at meetings; and record keeping, archiving and audit trail for the information model.
Currently, there is some debate around who would be an appropriate person to take on the Information Manager role. In some respects, this is a technical/IT role given the level of involvement with information and data exchanges. In other regards, such as considering the terms of information provided, it would require someone with a design background.
It may be in the future that the role of Information Manager will develop as a separate specialism.
8. What do I need to do about insurance?
The Construction Industry Council (CIC) has published a Best Practice Guide for Professional Indemnity Insurance when using BIM. The current position in the insurance market is that there are no coverage restrictions due to Level 2 BIM being used on a project. Insurers regard use of BIM as not making any material change to the risk profile on a contract and in fact, possibly a risk mitigation tool. This means that no endorsement or policy modification would be required. There are also minimal (and maybe no) premium implications.
Insurers are generally comfortable with the CIC BIM Protocol because it provides a clear liability picture. It is regarded as “best practice”. The advice if other Protocols are used is to discuss this on a case by case basis with brokers.
The pragmatic advice for parties operating in a BIM environment would be to discuss this with their broker or insurer since it is likely to be a material fact relevant to coverage. Insurers will currently tend to note that but not make any other changes to the policy as a result.
In general terms, insurers are keen to have clarity on roles and responsibilities. Insurers are comfortable with Level 2 BIM on the basis that lines of responsibility are clear and it is possible to identify which party is the author of any models passed to the Information Manager. It is understood that all of the main types of software operate in such a way as to ensure an appropriate audit trail for changes is created.
In the future, the market may move towards Integrated Project Insurance where all parties are covered on a no fault basis with each party contributing a percentage of the premium. This is available in the UK insurance market now although on a limited basis and without the benefit of reinsurance cover. This means policies are expensive and limited in terms of the level of cover available.
9. Do I need to be concerned about taking on any extra design liability?
So far, the standard form contracts have not made any amendments in respect of design liability and there is no need for them to do so. There is no change to the standard of care required in respect of design simply as a result of the use of BIM.
Concerns are often expressed about liability for data. The CIC Protocol provides that project team members do not warrant the integrity of any electronic data delivered in accordance with the Protocol and have no liability to the Employer in connection with any corruption or unintended amendment, modification or alteration of the electronic data in a Specified Model which occurs after it has been transmitted by the project team member, except where that occurs due to the project team member’s failure to comply with the Protocol.
This should provide comfort for those parties providing data but it does beg the question of what happens if any of these events occur. On current drafting, this would appear to be a risk borne by the Employer and it may be that consideration is required to insuring this risk.
The CIC Protocol also provides that the project team member has no liability to the Employer arising out of any modification or amendment to or any transmission, copying or use of the Material (defined broadly as meaning all information in any electronic medium prepared by or on behalf of the project team member and comprised in the Models) or any proprietary work contained within the Material other than in respect of permitted purposes. There is a reciprocal provision providing that the Employer similarly is not liable to the project team member. This should allay concerns about liability for changes to material.
Further, the software does provide an audit trail so that it is clear what changes were made to data and by who. However, the intention at Level 2 is that it is only the author of the material who would make changes. If a clash is detected, for example, the authors of the two clashing elements would be requested to make the changes necessary to their parts of design.
10. Will BIM affect my ownership rights in my design or data?
The CIC Protocol makes provision in respect of Use of Models. Rights (including copyright) in the material remain vested in the project team member. The Employer is given a non-exclusive licence to transmit, copy and use the Material and any proprietary work contained in it for the Permitted Purpose.
Permitted Purpose broadly means any purpose related to the Project (or the construction, operation and maintenance of the Project) which is consistent with the applicable level of detail of the relevant Model and the purpose for which the relevant Model was prepared.
Importantly, the licence does not include the right to amend or modify the material without the permission of the project team member except in specified, limited circumstances. It also excludes the right to reproduce any proprietary work contained in the Material for any extension of the Project.
There are provisions for grant by the Employer of licenses/ sub-licenses to project team members in respect of the work of other project team members on the same basis as above. The licence and sub-licence granted may be suspended or revoked in the event of non-payment if the licence provides for this.
Given that BIM is meant to apply to the whole life cycle of a building, it is thought that this is an area which will develop further in future.
11. What data do I need to ask the Contractor to provide?
This will vary from contract to contract. However, asking what is the purpose of data being provided will be the key.
At handover and then for the occupation phase, the data necessary is that which is required for the operation and maintenance of the building. This will be significantly less than the totality of data available. Thought should therefore be given to this when entering into the contract to avoid the “safe” option of requesting everything as this will increase the cost and result in an unmanageable amount of data being provided. Too much data may prove to be as bad as too little.
12. What is the position re warranties / indemnities and is there any difference in a BIM project?
The current position with standard form contract drafting bodies is that there is no difference in the position regarding warranties/indemnities in a BIM project. However, one factor which may be worth taking into account is the new role of Information Manager.
It is worth bearing in mind that the purpose of collateral warranties is to create a direct contractual link between the parties to it.
The CIC’s Outline Scope of Services for the Role of Information Management anticipates that this role will be delivered as part of an existing appointment. Clearly, if that is the case, and the Information Management role is simply an add on to services being provided by a party who is already providing a collateral warranty, there would be no need for a further warranty from that party. However, if the role develops such that it is a new party which takes on this role then it may be that warranties would be required.
13. Will BIM have any impact on planning and length of time required for construction projects?
Experience to date in the UK has been that the full benefits of BIM are more likely to be achieved where there is early involvement of the project team and also other parties such as the building end user.
In the Cookham Wood pilot project, there was an early involvement period of 6-8 weeks. One of the lessons learned was that a longer period would potentially have led to more savings being identified. On the subsequent trial project at North Wales Prison, a 24 week period is being trialled. It may be that this increases the length of time taken to plan and design projects. However, over the totality of the design and construct phase, it may be that this will lead to savings in cost, programme or both as a result of more efficient or innovative ways of working being identified. The aim also is to introduce savings to life cycle cost over the whole life of the building.
14. How can I use BIM during the occupation phase of my building?
A clear need has been identified for there to be a tie-up between the very early design phase of a building and its end use. There is a need to consider ongoing and protracted involvement over the life cycle of the building. It was suggested in the context of the Government Soft Landings initiative that those who design and construct buildings should be required to prove their operational performance for a period of 3 – 5 years. That is also in line with the whole lifecycle approach of BIM.
The ongoing availability of data necessary for the operation, maintenance and use of the building is one of the key benefits of BIM.
There is a clear need for a facilities management contract on an integrated basis with the construction contract, potentially with an interface agreement to deal with any overlap between the contractual arrangements, for example in the aftercare period following handover of the building but during which the Contractor is expected to prove the operational performance of the building.
This is a similar model to that currently in use on PPP contracts (although without the PPP funding considerations) where this is not an unusual arrangement.
There is clearly also a need to contract for the handover of data at construction completion and also for arrangements to allow for use of material and for this to be updated to ensure it remains relevant and useful throughout the building’s life.
15. Where can I find additional information about BIM?
United Kingdom
The UK Government and other organisations have put in place huge quantities of information aimed at allowing all parties to access this information free of charge online.
Information is available through the BIM Task Group website and also through the BIM Toolkit:
16. What will happen next?
The UK Government’s “Digital Build Britain” sets out a vision for reform of the construction sector by taking advantage of the opportunities offered by the Digital Economy – see http://digital-built-britain.com/. The UK Government’s vision is to continue the BIM journey from the implementation of Level 2 and to build on this into Level 3.
The overriding focus is a wish to align the interests of all parties involved, throughout the lifecycle of a building. This will require the creation of a contractual framework which encourages open and collaborative working. That needs to be reflected in a contractual structure which clearly regulate rights and liabilities in a way which allows for this ethos to continue when things go badly rather than descending into disputes and old-style conflict. That is particularly the case where the project is a one-off and there is to be no ongoing relationship between the parties but can equally arise in long term contracts if enough money is at stake and relationships start to deteriorate.
The contractual structure needs to extend beyond the design and construction phase if it is to achieve some of the other goals which include designing buildings with a view to aligning the construction and operational and facilities management aspects.
There is a drive to seek best lifecycle solutions with commercial models based on Totex delivery requiring a move towards considering total expenditure over the whole life of a building. This is in contrast to a focus on construction costs with discussions around value engineering to decrease construction programmes and costs which may be done without an eye to the implications of this on the operational phase of the building, its life cycle costs, energy performance and the end user experience.
A further goal is the capture of information to allow continual learning and improvement. Lessons learned on one project are to be applied to the next to drive both reductions in cost and more user friendly, flexible buildings able to be adapted as needs change. There is a huge focus on use of data to capture information about performance of buildings.
Contacts
Shona Frame Chris Hallam
Partner Partner
T +44 141 304 6379 T +44 161 393 4757
E shona.frame@cms-cmno.com E chris.hallam@cms-cmno.com

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