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