BIM: a collaborative approach to risk management & mitigation?

By David King

Synopsis of a BIM4Legal presentation at Norton Rose Fulbright LLP, London office.

By now most people are familiar with what we refer to as BIM maturity level 2 – where a digital project information model is created from consultant models, produced by a range of different designers, contributors or manufacturers; creating a federated model. Here clash detection is often easier than clash avoidance, because individual teams are working separately and don’t actually know if their bit of the jigsaw really fits until they plug it in.

In principle moving to level 3 will enable all designers to work together on the same central model, but practitioners are not currently operating at this level – and there often appears to be a lack of clarity and/or understanding in many of the conversations around the subject.

Initially the developments in Information Modelling were led by the design team – because of the advantages it offered in coordination, clash detection and visualisation. In 2007, in pursuit of brevity, I described the process as design development using;

“Virtual modelling in a collaborative environment with computable interoperable data”

However, it soon became apparent that the process was not limited to design, and I don’t think designers realised quite how significant the “collaboration” part would prove to be. Perhaps that’s because as designers we are used to the idea of collaborating – it’s what we do all the time; design teams couldn’t function without it. But information modelling is about more than simply 3D modelling – we now talk in terms of 4D (for sequencing), 5D (for cost analysis) and 6D (for operations management). Which is not to underestimate the role of innovations in technology – where the question is “what more can we do?”

There have been many developments in parametric modelling – so that, for example, a stadium designer may write an algorithm to look at how seating options will impact the revenue stream; and write programmes to test how orientation impacts energy use Also, future developments in AI will clearly lead to big changes – not least in dispute resolution.

In October 2018 a report from the Construction Industry Training Board talked of “unlocking construction’s digital future” and warned that the construction industry risks being marginalised and losing a generation of new talent, unless it starts to adopt innovative technology on a large scale; this is required reading. See: https://www.citb.co.uk/about-citb/construction-industry-research-reports/search-our-construction-industry-research-reports/innovation-technology/unlocking-constructions-digital-future/.

But again, it’s not just about technology. 3D modelling will of course continue to be an invaluable design tool as some projects are just too complex to coordinate without it. In addition, the launch of the Centre for Digital Built Britain’s National Digital Twin programme by the UK Treasury in July 2018, should encourage the expansion of opportunities for digital inter-connectivity to accelerate. See: https://www.cdbb.cam.ac.uk/national-digital-twin-programme

It seems to me, however, that there is also an opportunity for designers to regain some of the ground lost to other consultants over recent years. And this brings me to the issue of risk management and mitigation. It has always been a central premise of risk management that risks should be owned by those best placed to manage them, but despite this, it is my experience that those in the construction industry who create the risk often look to offload it on to somebody else; as, for example, seems to have been the case in SSE Generation v Hochtief Solutions (2018) CSIH 26

If we are already sharing data, why not also share the risks … and the rewards; which is where Integrated Project Delivery comes in. Perhaps the only impediment is one of attitude – largely because UK construction industry procurement is, in mirroring much of our legal practice, built on the adversarial model.

Integrated Project Delivery or IPD challenges this model – and it seems that government is once again setting the agenda. The announcement almost a year ago by Highways England of a “Smart Motorways” programme could yet presage what is to come – in this case a 10 year “Alliance” that might yet provide a model for future building procurement. See: https://www.theconstructionindex.co.uk/news/view/highways-england-issues-tender-for-7bn-smart-motorways-alliance

Let us not forget, also, that one aspect of alliancing in its typical form is limited access to dispute resolution. But this begs a number of questions:

  • Where government leads will others follow – are government initiatives enough to effect a cultural change?
  • Can infrastructure procurement models translate into building procurement?
  • Can traditional UK construction contracts actually be an obstacle to innovation?

Jerome Stubler (chairman of Vinci Construction) speaking at a recent Future of Construction Summit offered the following observation;

“The risk averse nature of UK procurement keeps costs artificially high – a power station the size of Hinckley Point is currently being built in France for less than half the cost ….”

So, what makes IPD different? Well, at its heart is the concept of shared information, together with shared risk and shared reward. Here collaboration is the key to digital transformation. True collaboration requires that parties develop confidence in each other, in their ability to deliver the project, and in their ability to respect the interests of all parties to the project, thus creating a relationship where decisions are made based on what is best for the project, rather than what is best for any individual team member.

What are the challenges for the legal team? I believe these remain much as before – the protection of authorship, intellectual property, and sometimes copyright … but in a new context; and of course, there’s potential for a much more fluid context outside of the EU. Could dispute avoidance reduce the need for dispute resolution, and can the legal team play an active part in such a transformation?

We’ve been talking about collaboration in the UK for a long time now, certainly since the Latham Report of 1994; the Egan Report in 1998; and the Government Construction Strategy launched in 2011. But to the extent that construction procurement remains a largely adversarial affair, the challenge of cultural change remains. IPD, grounded in BIM, offers an opportunity to facilitate that change, providing an environment where design teams can maximise their value, rather than just selling their time – and where the benefits of increased productivity are shared.

Of course, this requires first and foremost enlightened clients who are willing to contemplate sharing the reward they look to generate – clients who are willing to see the design team as partners rather than a service. And enlightened clients will surely look to enlightened design teams, advisers and lawyers … are we all ready to play our part?

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