BIM and the law – who should be the gatekeeper?

Whilst primarily arising from a dispute over contract terms and the value of the works, the decision in Trant Engineering Ltd V Mott MacDonald Ltd [2017] is of particular interest as it is the first published case where BIM features substantively, writes Sarah Rock.

Trant was engaged by the MoD as contractor for a £55m project in respect of the construction of a power station in the Falkland Islands. Mott MacDonald was appointed to provide design services and was also the building information modelling (BIM) coordinator, controlling access to the common data environment (CDE).

When a fee dispute arose, Mott MacDonald suspended its services and blocked Trant’s access codes to the CDE leaving Trant and the rest of the project team unable to access the design materials. 

Pending resolution of the substantive dispute, Trant made an application to the TCC for an interim injunction requiring Mott MacDonald to provide access to the CDE (including the design data) both to Trant and to others involved in the project.

The full judgment is not yet available but summarising reports seen to date, (insofar as relevant to the CDE), the TCC concluded that it had a high degree of assurance that Trant was entitled to have access to the design data which had, in fact, already been placed in shared folders.

It was particularly relevant that Trant had previously had access to the CDE before Mott MacDonald had suspended performance of its services. The TCC therefore ordered Mott MacDonald to restore access to the relevant design materials, subject to Trant making a payment into court.

The CDE is a digital data room where geometric information from the contributing designers comes together. All participants to a project are provided with codes to allow them access (usually via the internet) to the CDE and it is then used to share and access information, allowing the project to function and progress. It can also be used to share to registers, schedules, contracts, reports and other information.

Specifications for how a BIM CDE should work can be traced back to BS 1192-2007, and the publicly available specifications and British Standards which followed and make up the 1192 suite of documents. These documents form the bulk of the pillars of BIM Level 2.  

To date, in these admittedly early stages of BIM adoption in the UK, the question of who will actually host the project CDE has tended to be decided primarily on practical factors ie yes, who is at the centre of the information flow process is very important but, perhaps most significantly, which party has the technical capability in addition to sufficient knowledge and experience of BIM technology to ensure that the project is able to progress smoothly from this perspective.

Clearly, appointing a host without this capability could have disastrous results.

A CDE could take the shape of a project server, extranet or file-based retrieval system. Increasingly CDEs use cloud-based software to provide the digital space to hold and share the information.

Parties in a construction project are unlikely to own their own digital storage space to the capacity required for a BIM-enabled design and construction scheme, and so the digital storage space is often outsourced.

Contracts for the hiring of such spaces tend to come with little or no liability on the cloud outsourcing vendor’s behalf. Therefore, the party responsible for hosting the CDE may be unable to pass down any risk to the cloud outsourcing vendor.

The Trant case highlights the vital role of the host of the CDE within a BIM design and construction project, as the host holds the keys to the data room for the entire project.

By denying access to the CDE, the host not only withdraws access to their own designs (which a contract may well allow, for non-payment or suspension) but potentially also denies access to all other designs held in the CDE, as well as access to the programme, schedules, contracts etc.

The host is therefore the gatekeeper to the entirety of the project information held digitally meaning that the role (as highlighted by the Trant case) is crucial to progress, and therefore, the successful completion of the project.

Following this decision, fresh debate has begun in the BIM community as to who is best placed to take on the responsibility of hosting. Should the employer host, allowing them full control over access to the data room for the entire project?

Thus if a dispute arose between the employer and one participant in the CDE, this would potentially have less impact on the rest of the project. The employer could either revoke the access of the party in the dispute (subject to contact terms) or the party could remove or stop uploading their own data. But do all construction employers have the technical knowledge and capability to fulfil the role of CDE host?

Potentially, the role can remain within the project team, but with regular extraction of data to be stored locally by the employer. In this way, the employer could ensure that if access was suddenly denied, it would still have up to date data to allow the project to continue to function, albeit it would have to procure and run a new CDE.

Alternatively, as we have seen on some larger scale BIM projects, the responsibility for hosting could be split between the employer and a member of the project team. Utilising the 1192 CDE work flow and gateways, design materials could be hosted entirely on the project team member’s CDE up until the point where they pass through the published gateway.

At this point the design becomes valuable to the employer and so is moved from the project team member’s CDE to one hosted by the employer.

How the CDE is to be hosted remains a project-specific decision, bearing in mind factors such as capabilities, technical knowledge, size of the project and risk allocation – and must be clearly reflected in the contract conditions of all relevant parties.

Forms of appointment, contracts and BIM protocols need to be reviewed to take into account the decision in Trant. Parties need to ensure that they are adequately protected and that data required for the success of the project as a whole is not allowed to be used as a bargaining tool in a bi-party dispute.

Sarah Rock is a senior associate at Gowling WLG

This article was originally published here.

Image: Dave Bredeson/Dreamstime