Adoption of BIM and its legal complications for the construction industry
Introduction
In December 2020, the
Development Bureau issued a Technical Circular (Works) No. 12/2020
(the “Circular”) on the Adoption of
BIM for Capital Works Projects in Hong Kong. Taking effect from 1 January 2021,
the Circular extends the scope of the then mandatory implementation requirements
for Building Information Modelling (“BIM”)
adoption (compulsory adoption of BIM technology in capital works projects with
project estimates more than $30 Million) relating to asset management,
surveying of underground utilities, engineering analysis, 3-D control and
planning, etc. to further foster adoption of BIM technology in public works
projects. This article explores the legal complications that come with BIM
technology and provides an overview of the BIM Contract Conditions aiming to
offer clearer guidelines for the construction industry to navigate the BIM
landscape.
What is BIM
BIM is the technology and process used to generate and manage building data
throughout a whole building or assets life cycle from its design, construction,
maintaining to commissioning etc. Typically, consultants and contractors use three-dimensional
building modelling software to produce a database that encompasses building
geometry, spatial relationships, geographic information, quantities and
properties of building elements of a construction project. Utilised properly
and with due care, BIM could be a powerful tool to facilitate project
management, foster cross-disciplinary collaboration, improve visualisation and
reduce the amount of
design errors.
Legal challenges
As the adoption of BIM starts to permeate the construction industry, new
challenges for firms to navigate begin to surface. Legal complications
associated with BIM technology range from BIM models ownership issues, intellectual property
rights disputes, cyber security risks as well as insufficient contractual
allocation of responsibility and liability.
For instance, it is commonplace for parties
of a project utilizing BIM to share files and data through cloud storage. At
some point, models initially designed by some team members would also be passed
to other team members for further development. In this process, issues
regarding the ownership and copyright of models, cyber security of digital
data, as well as attribution of liability may arise at any stage of the
project. Contractual regulation of the use of BIM is therefore of paramount
importance.
BIM Contract Conditions
In April 2020, the Hong Kong Institute of Surveyors released a first
version of the BIM Contract Conditions (the “Conditions”) to be incorporated into existing professional services
appointments and construction contracts in the form of either special
conditions of contract or supplemental agreement. Various key Conditions
addressing the potential legal challenges associated with the use of BIM are highlighted
below.
1.
Priority of contract documents:
Clause 3.1
of the Conditions provides that the Conditions shall prevail over the agreement
entered into between parties of the construction project (the “Agreement”) in case of inconsistency or
conflict.
Clause 3.2 of
the Conditions sets out clearly the order of precedents of relevant contract
documents under the Agreement and the Conditions.
2.
Obligations of project
participants:
Clause 4.1
of the Conditions set out three main BIM-related obligations of any project
participant as follows:
a.
producing the Model Elements to the Level of Development (as defined in
the Conditions) and at the project stage identified in the Model Delivery Table
at Appendix 1 of the Conditions;
b.
performing the additional modelling activities or uses identified in Appendix
1 of the Conditions; and
c.
complying with all specified standards, processes and procedures in
respect of the development, use, transmission, exchange, storage and archiving
of the Digital Data.
Appendix 1
of the Conditions contains a Model Delivery Table which stipulates the required
BIM modelling activities or uses and the respective responsible project
participant at different stages of the project. Meanwhile, Appendix 2 of the
Conditions sets out the specific standards, methods and procedures for all BIM
related deliverables as well as the methods and procedures for exchange and
collaboration of digital data and models. These appendices serve as a useful
tool to allocate responsibility and unify the standard of deliverables from all
project participants.
3.
Digital data exchange
Clause 5.1 of
the Conditions provides that an internet-based centralised electronic document
management system shall be used for sharing and storing digital data under a
common data environment.
Clause 5.2 provides
that all project participants shall continuously use best endeavours to protect
the digital data form any cyber risks including electronic security breaches,
virus attacks and hacking etc. Digital data should be stored in a secure and
stable system and there should be regular back up of data.
4.
BIM management:
Clause 6.1
of the Conditions mandates that each project participant shall establish and
maintain a BIM team headed by an experienced and competent BIM team leader to
satisfy its obligations under the Conditions.
Clause 7.1
stipulates that parties of a project should also appoint a BIM manager to
manage a specified project stage or the whole project. The BIM manager’s duties
are set out in clause 7.3 of the Conditions.
5.
Intellectual property rights of
the models:
Under
clause 10.1 of the Conditions, each of the project participants warrants that
he owns the IP rights to his model or is licensed by other IP rights owner to
make his model.
Under
clause 10.3, each of the project participants owning the IP rights of his model
is deemed to have granted to his employer under the Agreement of subsequent
owner of the project a non-exclusive irrevocable licence to use such IP rights
for the project without the need to obtain prior written consent.
Under
clause 10.4, the employer of project participants shall grant a non-exclusive
licence or sub-licence to transmit, copy and use the model solely for the
project to participants of the project.
As for
situations where several project participants each make certain contribution
that may be connected to with other participants’ model, each of the project
participants shall own the IP rights of his own distinct individual
contribution but shall not be a co-author or co-owner of the connected model.
Takeaway
As illustrated above, the Conditions
addresses several aspects of legal issues associated with BIM by outlining the
responsibilities of each project participant, ownership of BIM models as well
as intellectual property rights. The Industry should, however, not overlook the
fact that the Conditions is drafted as a set of standard terms to be
incorporated into professional agreements, the provisions and scope of which must
be considered on a contract-by-contract basis.
For enquiries,
please feel free to contact us at: |
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Important: The law and procedure on
this subject are very specialised and
complicated. This article is just a very general outline for reference and
cannot be relied upon as legal advice in any individual case. If any advice
or assistance is needed, please contact our solicitors. |
Published by ONC Lawyers © 2022 |