By Joan Malana Kennedy
This is part 2 of a 2-part series about the developing issues in access to design data concerning digital collaborative working environments, particularly BIM. Part 1 discussed the background and BIM development in the UK, and the first reported formal dispute involving BIM in the UK, Trant Engineering Limited v Mott MacDonald Ltd [2017] EHWC 2061 (TCC). This article will deal with the lessons learned about TEL v MML [2017] and the implications and applications for designers.
Design Work Stages and Design Data Exchange
The TEL/MML case illustrates how project workflow has evolved recently. Work stages in different jurisdictions may slightly differ in terminology, but in most instances, the general principles of Pre-Design, Design, Construction, Handover, and In Use are followed (RIBA, 2020).
In 2013, the Royal Institute of British Architects Plan of Work (“RIBA PoW”) adopted an 8-stage approach, a change from its 2007 PoW version, which denoted 11 stages. In 2020, the RIBA PoW 2020 was published to correspond to the design and construction industry changes, notably digital innovations that affect project workflow.
RIBA PoW 2020 maintained the 8-stage approach of 2013 but updated the naming of some work stages. It replaced the “BIM Overlay” with a section on “Information Requirements” with an emphasis on two critical aspects: (1) client review and sign off; and (2) information produced at the end of each stage that guides the activities to be carried out on the next stage (RIBA, 2020).
Had the RIBA PoW 2013 and the UK Government’s Digital Plan of Work (dPoW) been utilized on the project at the core of the MML/TEL dispute, Table 1 provides a high-level comparison of MML’s scope of services with RIBA Plan of Work, UK government’s (NBS) Digital Plan of Work (dPoW)* and BS EN ISO 19650-2: 2018 about the level of information that MML would have been required to provide. The AIA design stages (RIBA, 2020) have been mapped out in Table 1 as a comparison with the USA. A more comprehensive comparison table is available in the online version of this article at STRUCTUREmag.org.
It is noted that securing the commission is not strictly part of the Strategic Definition, Stage 0 of RIBA PoW. However, a successful working relationship depends on the roles of all parties being established clearly from the beginning (RIBA 2013). The dispute between TEL and MML was about who owned and accessed the CDE data, which could have been established at Stage 0 – Strategic Definition.
The key to a collaborative working environment was an agreement upon the CDE, which established MML would develop via the project collaboration software ProjectWise. Table 1 briefly outlines the extent and nature of design information a designer is to provide at every work stage. If the RIBA PoW 2013 had been adhered to, MML would likely have had to provide a coordinated architectural, structural, and building services design, updated cost information, and a BIM Level 2 Model at Stage 3. BIM Level 2 is “distinguished by collaborative working and requires an information exchange process which is specific to that project and coordinated between various systems and project participants” (McPartland).
In summary, establishing the design deliverables flowing from the BIM process at the onset of a project is critical. In the MML/TEL matter, the court declined to address whether a contract did or did not exist but guided how essential agreement upon the details related to these deliverables is. Since the employer defines the key deliverables, according to the dPoW, it is critical to know who drives this process to have a clear, concise, and definitive conclusion.
In practical terms, CDE and workflow should be used for managing information during asset management and project delivery. It should be divided into “information containers”: work in progress, shared, or published. The latest standard in BS EN ISO 19650-1:2018 recommends “information container-based collaborative working” to distribute CDE workflow across different platforms.
The Cost of Design Data
The generation of design data comes with a cost. In the TEL/MML case, the evidence showed that the financial harm to MML by a requirement that TEL be given access to the digital deliverable after the first year of design effort was “very little.” This is because the design data was already readily available, although not accessible to TEL. In addition, TEL had undertaken to pay the compensation due to MML. But, MML’s (unremunerated) costs would likely have increased if the project proceeded and MML continued to incur expenses concerning the BIM production without clarity on the issues related to the design data model. As acknowledged in the court’s judgment, MML’s entitlement to a fee concerning the design data would be difficult to identify and value, barring the parties’ agreement on governing provisions.
Conclusion
This case provides an important lesson for designers, who should know that the primary obligation is to perform the contract, with the recoverability of monetary damages coming second. As such, designers should ensure the clarity of their contractual obligations and that the valuation of a breach of contract by the employer provide an adequate remedy when the designer incurs such damages. This valuation is readily provided when the parties follow the PoW provisions at “Stage 0 – Strategic Definition.” Such valuations are also affected by the procurement model selected, mainly because the level of information to be provided at Stages 2 and 3 may vary, i.e., two-stage design and build contract. Furthermore, suppose the designer acts as the CDE’s coordinator and controls the host environment. In that case, this comes with a weighty obligation to other project members, i.e., coordinating the design information, which may have monetary repercussions. These factors need to be considered in the fee entitlement and payment cycle. ■
Joan Malana Kennedy is a Senior Consultant in J.S. Held’s Global Construction Advisory Services Practice based in the United Kingdom. She is a designer with a diverse international portfolio who developed her technical expertise working in Singapore, Kuala Lumpur, and the Philippines. She has provided technical assistance with complex and high-value claims in cases in the UK, Middle East, and Southeast Asia. (joan.kennedy@jsheld.com).
References
R Fairhead, RIBA Plan of Work 2013 Guide: Information Exchanges <https://www.taylorfrancis.com/books/mono/10.4324/9780429347085/information-exchanges-richard-fairhead>
R McPartland, NBS <https://www.thenbs.com/knowledge/bim-levels-explained> accessed on 1 March 2022
Royal Institute of British Architects (RIBA) Plan of Work 2020 <https://www.architecture.com/knowledge-and-resources/resources-landing-page/riba-plan-of-work>
Royal Institute of British Architects (RIBA) RIBA Job Book, 9th edition, UK: 2013