Introduction
The use of Building Information Modelling (BIM) on construction projects has become increasingly common in jurisdictions with a developed construction sector given the whole of project life benefits associated with BIM. More recently, we are seeing BIM being enhanced through the incorporation of Artificial Intelligence (AI) – by utilising machine learning algorithms that “learn” from past projects and suggest improvements for current projects (for an overview of how AI has become part of BIM technology, see our blog post: Integration of AI into BIM).
In this blog post, we focus on two aspects of the growing use of BIM. We look at government policy initiatives that promote its adoption across the globe and new ways in which BIM is being used.
Government policy changes
Government initiatives promoting the use of electronic modelling software in construction projects have accelerated the adoption of BIM across many jurisdictions. In the last decade, several jurisdictions have mandated the use of BIM for designated construction projects, including in the private sector. The UK, EU and US were early adopters of BIM but, more recently, other jurisdictions have introduced similar regulations.
The UK government has set BIM requirements for public sector projects executed from April 2016 (and from April 2017 in Scotland) which in turn has driven companies to adopt their own BIM strategies also in the private sector. The UK government has expressed its “long term ambition” to be a global leader in the exploitation of BIM technology and increasingly as a supplier of BIM services and software globally.
The EU, meanwhile, launched its own BIM Task Group in 2016 to align policy regarding the use of BIM in public projects across member states, although the implementation of specific requirements is still a matter for the member states. Countries like Denmark, Germany and Italy have already introduced BIM mandates on public sector projects.
In the US, a National BIM Standard was introduced in as early as 2007, providing guidelines for the use of BIM in public and private sector projects. However, there is currently no national mandate for the use of BIM on government projects, which remains a matter for states, cities and individual organisations. According to survey reports by the American Institute of Architects, the use of BIM has been increasing, with 100% of large firms and 37% of small firms surveyed using BIM for billable work in 2019, with the later number increasing to 52% according to a later report for 2021, as more affordable BIM software and training resources have reportedly made the technology more accessible to smaller firms.
Far more recently, Hong Kong has mandated that certain capital works projects with project estimates of more than HK$30 million (equivalent to US$3.8 million) shall use BIM technology. Over a consultation period until 29 February 2024, the Hong Kong government has invited stakeholders to provide their views as to whether a full mandate to adopt BIM by the private sector by 2029 is reasonable.
Also in recent times, Singapore introduced a new Code of Practice in September 2023 for practitioners in the construction industry regarding regulatory submissions to CORENET X, its new digitalisation and technology-driven platform which aims to enable submission of 3D models using BIM to different regulatory agencies. Submissions to CORENET X will remain voluntary until 31 March 2025, but the Singaporean authorities have strongly encouraged market players to familiarise themselves with the relevant processes now.
Dubai has recently mandated the use of BIM in applications for certain types of building permits. As of 1 January 2024, the Dubai Municipality will accept applications for certain types of building permits only if they are accompanied by a qualifying 3D BIM. Architectural and construction designs must be submitted in a BIM format that complies with the Dubai Building Code and Dubai BIM standard. To ensure compliance with the standards, the Dubai government has launched the “Building in Dubai” online platform on which submissions will undergo automated auditing.
In China, the use of BIM has received government support, for instance in the form of local and national policies on BIM technology in recent years, but without a uniform, nationwide standard. Northern provinces around Beijing and Eastern provinces close to Shanghai have been the key drivers behind BIM adoption.
Increased use of BIM to promote sustainable construction
In addition to its many benefits during the lifespan of a project, BIM is starting to play an important role in promoting sustainable construction. It does this in three ways.
First, BIM can compare building materials to provide an assessment of a project’s carbon footprint, along with other environmental impacts throughout the project’s lifespan. For example, BIM has been instrumental in improving sustainability for large scale projects such as Crossrail in London, also described as an “enabler” of BIM, and the Baku National Stadium in Azerbaijan. Why is this relevant? Buildings, designed and built with the help of sustainability certifications reportedly outperform conventional buildings, by achieving energy savings of 30-50%, water savings of 20-50%, and produce up to 62% fewer greenhouse gas emissions. Integrating BIM with sustainability software allows for the monitoring and achievement of sustainability certifications.
The second way BIM will play an important role in sustainable construction arises because the construction industry may find itself increasingly exposed to climate change litigation and regulation. Using BIM can help to indirectly reduce those risks. In the UK, it has already been acknowledged that information management (including BIM) plays a key role in achieving the government’s environmental goals by allowing environmentally friendly designs and uses, while also facilitating a high level of private-sector investment to achieve these goals. Considering the worldwide increase in climate change litigation, BIM will likely play a bigger role in the implementation of green building strategies.
Third, BIM has the potential to influence procurement decisions to reduce waste and minimise design clashes that might otherwise require demolition and re-construction. Moreover, it has already proved beneficial for the re-construction and renovation of existing structures. For example, BIM-generated models served a critical role in the restoration of the Notre-Dame Cathedral in Paris after severe damage by a fire in 2019. Improving resource efficiency on this basis can be a crucial step towards a circular economy and in delivering sustainable growth.
Legal implications
As BIM becomes a regulatory requirement in many parts of the world, parties will need to direct their attention to managing the legal risks that may ensue.
The starting point is how to address BIM under the contract. Many of the standard forms, such as the FIDIC forms, do not include any standard provisions on BIM. Instead, the BIM Advisory Note appended to the 2017 edition of the FIDIC suite highlights the issues to be considered when using BIM on a FIDIC project. The 2022 supplement highlights that FIDIC contracts do not require a particular form of BIM Protocol, or other BIM documents, but one suitable example is the Information Protocol published by the UK BIM Framework. As it stands, the parties involved in the design and construction of a project will need to determine, themselves, how BIM standards should be implemented into the contract.
The expanding role of BIM also raises numerous legal questions including copyright, data protection, design responsibility, and contractual liability. For example, parties will have to secure that ownership of and rights to use intellectual property in such technology is regulated, and correctly provided for in underlying contracts and licences. For an employer, the goal may be to obtain maximum benefit from ownership of related IP rights, while a contractor may need to exercise prudence that any transfer of such rights (to the employer) is in the first place theirs to grant. Determining who owns any BIM produced on a project is another key consideration which, if not managed contractually, will be left to the default IP rules under the applicable law. The exchange of large amounts of data as part of the BIM process may also raise data privacy and security questions, and the need to ensure compliance with applicable data privacy and security regulations in potentially multiple jurisdictions for the same project.
There are also risks associated with the exchange of iterations of the BIM on the project and the potential reliance by different project stakeholders on the underlying data, including blurring the lines between design and construction responsibility.
The parties should also consider whether the BIM would constitute a contract document including its hierarchy in the priority of documents. Important consequences could flow from the treatment of BIM as a contract document, including issues of design responsibility (eg, whether the designer meets its duty of care if the BIM complies with the applicable building codes) and breach of contract (eg, the contractor may argue that it completed the work “as-planned” because it is in accordance with the BIM model).
These and many more questions must be carefully considered before executing a contract where the use of BIM is anticipated to ensure that all project participants have a common understanding of how BIM will be used and are able to plan for the potential risks ahead.
Conclusion
The success of BIM is evident by the growing number of jurisdictions that are encouraging, if not mandating, its use in public and private sector projects. The successful deployment of BIM requires management of certain risks under the contract. While many of the legal questions that flow from the use of BIM may not necessarily be novel, it is crucial that parties establish clear contractual arrangements and protocols to alleviate uncertainty and maximise the benefits of BIM.