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Merlin’s facility management: why commercial and property lawyers will need to know about BIM

The way in which the built environment is constructed and facilities are managed is changing. We need to make sure our contracts, enquiries and legal services keep up.

Since 4 April 2016, all centrally procured public sector projects for the UK government have had to implement Building Information Modelling (‘BIM’) to level 2[1]. The private sector has also embraced BIM to deliver integrated design. Players at all levels realise that BIM will change the way that we manage facilities, especially as clients look for ‘soft landings’ when they take over buildings or rely on information technology to deliver energy efficiency standards and reduce operating costs.

Our clients’ needs and expectations are changing, then we need to make sure that our service levels and advice change too. As lawyers we have to understand the way in which our clients are managing and operating their assets.

What this short briefing document aims to do is to outline what BIM is and how it will affect facility management and service provision. It will then highlight what the author thinks could be the consequences for commercial and property lawyers over the next few years.

What is BIM?

BIM is the digital, or computer software-based, representation of a building. It includes its physical characteristics as well as its functional aspects. A good BIM model is a shared knowledge resource for the building or infrastructure. It goes beyond 3D CAD because the model contains a mine of information, rather than simply being a computer representation.[2] For example, the Leadenhall Building was designed using BIM; it was fabricated using that same model, with each component of the building (such as, for example, doors or hand rails) carrying with it information in the BIM model.[3]

This is not a future theory, or isolated to the UK alone. The NBS National BIM Report 2015 revealed that 59% of respondents were meeting the requirements for Level 2 BIM in England and Wales, while globally BIM is being adopted.[4]

Why is BIM important to facilities management?

BIM applies to the entire life cycle of the asset, however. Used right, the operator can achieve considerable cost savings when operating the facility and even when refurbishing, redeveloping or demolishing it. This is significant because only 3% of a building’s total cost is spent in the design and construction phase; 85% is required to operate it and 12% to maintain the structure.[5] The RIBA Plan of Work 2013 now requires an architect to consider the operational aspects of their buildings, adding a Stage 7 (in use) specifically to deal with this aspect of design.[6]

To take some concrete examples, BIM should contain warranty information about all the components used in the building; information on the materials and products used, as well as their installation and service information; proper documentation on fire safety, accessibility and CDM compliance; in short, a one stop shop for all the information required to operate and maintain a modern facility.[7]

A legal team advising its client overlooks this at its peril.

What are the legal problems that we might encounter in the future?

Construction lawyers are already aware of the need to ensure that their contracts and working practices deal with the issues that BIM raises, even if there is still some debate as to the effectiveness of these measures.[8] We know, however, that initial construction the beginning of the legal journey for a building or facility. There might be a long term facilities management contract; the rights in the building itself might be assigned; it could be let or sub-let to long term tenants; it will be sold a number of times in the future; eventually, it will be extensively refurbished and even demolished. If BIM will play a role in the potential life stages of a structure, we need to be aware of its potential legal snares and minefields.

How do we deal with the intellectual property issues raised by BIM?

In the UK, the key legislation governing copyright is the Copyright, Designs and Patents Act 1988 (CDPA). It covers a designer’s design drawings. The CDPA also protects rights in databases.[9] An employer will need to use copyright materials (for example, for marketing, repair, maintenance and alterations). On a BIM project, where the first and subsequent owners will wish to make ongoing use of the model (and even to adapt and add to it) current market standard licences do not go far enough.

Furthermore, the IP in the model (including cost data, design processes, databases and graphical information) is likely to come from a number of different sources and engage a number of different issues, including database rights.[10] There may also be problems of confidentiality and trade secrets incorporated into the BIM model that will need to be dealt with head on.

Currently, the Construction Industry Council BIM Protocol and, in the USA, ConsensusDOCS, provide a limited licence to the end-user in respect of the intellectual property in the designs incorporated in the BIM model. Future purchasers will also need limited licences to enable them to use the information in the model for it ongoing maintenance. This is a bare minimum, if indeed it is in fact sufficient. Further, as we move towards Level 3 BIM (which is even more open and collaborative) issues from joint ownership of the information in the model will need to be addressed.

How do we assign the BIM model to future owners?

A building with a full BIM model (including, for example, facilities management data) is likely to be an easier facility to run and manage. In the future, we shall need to ensure that end-users will have ownership, or at the very least access to, the models. For example, if a tenant will take responsibility for facility management, we shall have to consider how our contracts deal with access to the BIM models. Future outright owners will also want to ensure that they also take on ownership of the models, without violating the intellectual property of the designers and other contributors to the model.

Who will maintain the BIM model?

As a facility ages, the BIM model could become increasingly out of date as maintenance takes place and replacement items are fitted unless it is properly maintained; conversely, a diligent facility manager or owner will want to adapt the model to assess the effect of alterations.[11] Our contracts for facility management are going to have to make provision for keeping the model up to date, as well as who owns the intellectual property in it many years after completion of construction.

What will future owners need to ask when purchasing a property?

Given the ongoing cost of facilities management, the difference between a building with a fully up to date BIM model and one lacking the same is likely to make a significant difference financially to your client. When making enquiries about a property, what sort of questions will a property lawyer ask about the BIM model? What sense will the lawyer make of the answers?

Do not think that you can fudge the issue

It is not going to be possible to simply fudge over these issues. Facilities management contracts can last for decades. The courts have shown a deep reluctance to use generalised or even implied terms as to ‘good faith’ or other ambiguous provisions to aid a party to a detailed long term relational contract.[12] Even a short term agreement requires clarity as to key performance indicators, specification, termination and price. Information is becoming an increasingly important aspect of facilities management. BIM is an aspect of that. Our contracts and expertise will have to keep up.

Conclusion – we need to make sure BIM isn’t magical

BIM has already impacted on the way we design buildings. It has the potential to change the way we manage and operate them during their lifetime. When we help our clients draw up contracts for the purchase, operation, sale, alteration and demolition of these structures, we are going to have to confront the particular issues thrown up. As commercial and property lawyers, we have to take the mystery out of the magic of BIM.

 

[1] Government Construction Client Group, Building Information Modelling (BIM) Working Party Strategy Paper, Cabinet Office, March 2011, Chapter 5, www.bimtaskgroup.org

[2] For a short video showing one software company’s demonstration of BIM, see http://www.autodesk.com/solutions/bim/buildings/owners-managers#related-video-the-future-of-making-things-for-buildings . A short presentation on how BIM benefits owners is at http://static-dc.autodesk.net/content/dam/autodesk/www/solutions/bim/images/stories/BIM for Owners deck FINAL .pptx .

[3] http://www.laingorourke.com/our-work/all-projects/the-leadenhall-building.aspx , accessed on 3rd June 2016. ‘Now in delivery phase, the project is piloting the application of radio frequency identification (RFID) software – which uses data tags attached to building components to allow them to be tracked through manufacture, supply and installation. This will enable preventative action in the event of any delays downstream. When integrated with BIM, RFID can be used to render a data-rich replica of the project in real time. Going forward, this technology will be used to enhance project controls and – against these – develop robust key performance indicators.’

[4] Andrew Croft and Will Buckby, ‘Approaching BIM – a legal perspective’, (2016) 27 2 Cons.Law 20

[5] Brad Hardin and Dave McCool, BIM and Construction Management: Proven Tools, Methods and Workflows (2nd edition, John Wiley & Sons, 2015), loc 6544

[6] Dale Sinclair, RIBA Plan of Work 2013 Guide Design Management (RIBA, 2014)

[7] Chris Jeffers, ‘Top 6 priorities for forward thinking Facilities Managers’, (2015) 120 Essential FM Reports 3-4

[8] May Winfield, ‘Building Information Modelling: the legal frontier – overcoming legal and contractual obstacles’, Society of Construction Law paper, April 2015

[9] CDPA, section 3A(1); Copyright and Rights in Databases Regulations 1997 (SI 1997/3032)

[10] Lesley Currie, ‘Building Information Modelling: Its impact on design liability, insurance and intellectual property rights’, Society of Construction Law paper, May 2014, p11

[11] Currie (2014), p12

[12] ‘The contract in the present case is a detailed one which makes specific provision for a number of particular eventualities. The specific provisions include clauses 5.8, 6.3 and 6.5. In a situation where a contract makes such specific provision, in my judgment care must be taken not to construe a general and potentially open-ended obligation such as an obligation to “co-operate” or “to act in good faith” as covering the same ground as other, more specific, provisions, lest it cut across those more specific provisions and any limitations in them.’ Per Beatson LJ at [154], Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd (t/a Medirest) [2013] EWCA Civ 200, [2013] BLR 265

David Sawtell / 7th Jun 2016


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