BIM: a collaborative approach to risk management & mitigation?

by David King

Synopsis of a BIM4Legal presentation at Norton Rose Fulbright LLP.

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 degree of smoke & mirrors 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 and 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 programmes to test how orientation impacts energy use, etc. Also, future developments in AI will clearly lead to big changes – not least in dispute resolution.

This time last year a report from the CITB 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:

But again, it’s not just about technology. 3D modelling will of course continue to be an invaluable design tool; some projects are just too complex to coordinate without it. And with the launch of CDBB’s National Digital Twin programme by HM Treasury in July 2018, the expansion of opportunities for digital inter-connectivity continues to accelerate:

However, it seems to me 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 in my experience the construction industry doesn’t always follow this doctrine and is not always very good at risk management. Those who create the risk too often look to offload it on to somebody else.

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 follows an adversarial model, rather like our legal system.

Integrated Project Delivery or IPD challenges this model and it seems 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: a 10 year “Alliance” that might provide a model for future building procurement:

And let us not forget, 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 U.K. 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 is the difference in IPD? 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 trust and 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. Of course, there is potential for a much more fluid context outside 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 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 and to see the design team as partners rather than a service. Such enlightened clients will surely look to appoint enlightened design teams, advisers and lawyers. Are we all ready to play our part?