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BIM raises question on rights to access design information

BIM raises question on rights to access design information

As BIM uptake grows across the industry, participants in the shared data environment are wrestling with wider questions beyond the learning of the technical ropes . Key considerations include the role of the data host and the rights of the individual parties to access their design information in the shared model.

Earlier in the year, the issue became the subject of a court ruling (Trant Engineering Ltd V Mott MacDonald Ltd [2017]), reinforcing questions for BIM users about what happens when control of the BIM model is used as leverage in a contract dispute.

The Technology and Construction Court granted an interim injunction to client-contractor Trant Engineering to access design data after engineer Mott MacDonald – the BIM co-ordinator on the project – locked Trant and other parties out of the BIM Common Data Environment (CDE) by changing access passwords following a dispute over payment.

The project was a £55m power plant for the Ministry of Defence in the Falkland Islands. Trant Engineering engaged Mott MacDonald during the tender period to provide design services for an initial payment, with the consultant expecting to carry out full design services if the bid was successful. Mott MacDonald was also acting as design co-ordinator and was responsible for setting up and hosting the BIM CDE.

Trant was awarded the MoD contract, but disputed Mott MacDonald’s claim for payment for additional work done and did not sign the contract with its design consultant.

With only partial payment received and no agreement reached on the outstanding sum, Mott MacDonald blocked access to the CDE and revoked copyright and intellectual property rights for design work already done. The contract that was to have been signed would have granted Trant a licence to use designs subject to a right of suspension if full payment was not received.

Control of the BIM CDE has acquired new significance in contract terms. CGI © Graphisoft

The court decided to grant Trant an interim injunction allowing it to access the design data in the BIM model (data to which it had previously had access) subject to a payment into court.

Commentaries on the judgement by solicitors including Gowling WLG and Dentons agree that the judgement flags up the key question of who should host the BIM CDE and act as gatekeeper, effectively controlling access to the site.

David Miller, whose practice uses BIM on all of its projects, says that while large public sector clients are likely to host the CDE themselves, the CDE host on smaller projects is likely to be the consultant or contractor with the best technical capacity for the role. There is no standard industry model to be followed.

‘It is to be hoped that the idea of someone being able to control data on behalf of everyone else does not put people off using BIM, as the advantages of working with BIM outweigh everything,’ Miller adds.

Following the court’s ruling and the highlighting of the potential for BIM to add a new dimension to disputes, solicitors are likely to give more attention to contract terms designed to ensure that a CDE host cannot use design data access as a bargaining tool.

Gowling has suggested that forms of appointment, contracts and BIM protocols might need to be reviewed to take account of the Trant ruling.

Dentons highlights that the judgement has flagged a range of issues, such as the question of a separate CDE hosting agreement, particularly in circumstances where only interim contractual arrangements are in place.

Questions to be asked, says Dentons, include whether design licence provision is appropriate for a project, whether the client’s design licence should be dependent on full payment, and whether clients should consider amending or deleting the right to suspend a design licence in the absence of payment.

Thanks to David Miller, Director & Principal Architect, David Miller Architects.

Text by Neal Morris. This is a ‘Practice News’ post edited by the RIBA Practice team. Send us your feedback and ideas.

RIBA Core Curriculum Topic: Design, construction and technology.
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Posted on 30 November 2017

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