Legal issues related to Building Information Modeling (BIM)

Using software, any building can be modeled, from its walls to its doorknobs. The prospect of bringing together all of this information, at an unprecedented level of detail, raises a slew of legal questions.

BIM (Building Information Modeling) is a new computational technology to model any existing or future building using extremely detailed and comprehensive information. Today, BIM software cannot only be used to create a virtual 3D representation of a building and all its properties, but also to present the juxtaposition of its many layers (foundations, walls, plumbing, electric circuits, etc.) and isolated components (from the roof to individual nails). But the possibility of reporting an abundance of information, of interacting and working within a single platform, also entails new issues involving a range of legal fields. The Institute for Swiss and International Construction Law at the University of Fribourg has made it its goal to identify these issues and provide initial solutions.

Uniting all existing information
In Switzerland, more and more architects are using the BIM methodology. While it was initially developed for the automotive industry to simulate future cars or machines, it has been applied in the United States to design, simulate, and test buildings, from the construction site to their demolition, including the operational phase. The methodology comes with many advantages: “It may come as a surprise, but there are still many inconsistencies that only become apparent when construction is well underway! This is due to the fact that designing and planning a building requires a large number of specialists, which makes it difficult to comprehensively coordinate the various contributions using traditional tools. As a result, there are often a number of persistent incompatibilities that can potentially become expensive later on,” explains Martin Beyeler, a professor at the smart living lab and at the Institute for Construction Law. By bringing together all of the information pertaining to a project to model and by analyzing it for incoherencies or incompatibilities, BIM offers more integrated, and consequently, more reliable planning. Additionally, detailed simulations of digital models make it relatively simple to explore any range of variants of a building and test other strategies or components. “Optimize before you build” is the mantra of this new methodology that provides a means of making better-informed, more responsible, sustainable, efficient, and cost-effective decisions ahead of time, with a significant potential energetic and environmental impact.

Spotlight on legal issues
The BIM method paves the way for new practices and processes that legal experts have to anticipate to provide answers to problems and disputes related to its use. The digitalization of a construction process has repercussions on contract law. “The contractual fabric of a construction project is a labyrinth of bilateral contracts. But, to a certain extent, BIM relies on uniform processes. Moreover, certain tasks traditionally assigned to specific participants disappear; others change due the use of computerization; others are newly created, such as the task of integrating all of the information on a common virtual platform. These changes will likely have consequences on the attribution of responsibilities and on the question of financial compensation,” explains Martin Beyeler. Who has what rights on the information united in the BIM models? Which types of information are to remain confidential, and how can they be protected from thieves or hackers? And what can be done to keep innovations from being plagiarized or stolen?

Requesting building permits with BIM?
For the time being, construction law requires submitting blueprints (or computer models) in 2D to request a building permit. “Submitting a building permit request using a BIM model could considerably speed up the procedures. The BIM model makes it easier to verify the conformity of the project while also making its evaluation more precise. As a result, requests could be processed more quickly,” explains Martin Beyeler. We are not there yet; the laws still need to be adapted, which will require not only addressing issues related to form and content, but also those related to the public inquiry and data protection, “because when you compare them with plans printed on paper, digital models can contain much more information and can easily be copied and misappropriated.”

The state is also concerned
Martin Beyeler has found that, like private actors, the state is entitled to use BIM for its projects (and during the tender process). Under the principle of non-discrimination, the state must not, however, impose a specific software solution without a compelling reason, as this would put those accustomed to working with different software at a disadvantage. A similar risk of discrimination could arise when construction work is put out to tender using a BIM model with certain elements already in place corresponding to specific products. This, concludes Martin Beyeler, would be against public procurement law.

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