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BIM: The technological revolution in the construction sector and its legal implications

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The need to modernise the construction industry makes it necessary to leapfrog to a global digital environment, covering the entire life cycle of a project ), and allowing the integration of all the agents involved in the process

Expansión | BIM, Building Information Modeling, in Spanish Modelado de Información de Construcción is a collaborative working methodology that documents the entire life cycle of buildings and infrastructures, through a digital platform with a reliable knowledge base useful for all agents involved in the construction process.

In Spain, all building projects of more than two million euros with public funding must have had BIM implemented from 18th December 2018; from 26 July 2019, BIM will be mandatory for all publicly financed infrastructure construction projects.

As with all technology, we must ask ourselves what the legal implications are. Designing, constructing and operating a building or infrastructure in a collaborative way and in a virtual space entails important challenges when it comes to establishing different aspects.

Firstly, the liability regime. The responsibilities for entering and validating the information of the different parties participating in the ecosystem must be clearly established in the contracts. For example, the question may arise as to which party is liable for product liability in the event that a BIM file that is introduced with supported information and with assurances about its content is a posteriori modified by another party intervening in the platform at a later stage.

In the same way, in order to face possible risks, it is important to define in the appropriate clause which party bears the risk for delays in the project and/or additional costs arising from errors of assessment, use or transmission of information during the project.

In terms of insurance, specific insurance contracts are necessary that consider the collaborative nature of the activity and the platform.

As regards intellectual/industrial property rights, it must be clearly determined to whom each piece of information entered on the platform belongs; establish the ownership of any patents, the scope of use of the licences involved; among others.

Finally: to design adequate data protection policies, including what valid uses can be given to the data and information contained in the system, among others.

At the legislative level, the EU recommends in Directive 2014/24 of 26 February 2014 on public procurement the use by Member States of electronic tools for the construction of public works, including BIM.

In general, because of the relative newness of the technology, there are few contractual standards so far and even fewer conflicts of which we have judicial resolution. Therefore, we will be very expectant of the legislative developments that take place in Spain.

All types of construction (offices, homes, hotels, hospitals...) will benefit from the use of this methodology, providing improvements in estimating compliance with deadlines and costs leading to a substantial improvement in the quality of projects. According to The Boston Consulting Group, by 2025, large-scale digitization will generate annual savings of between 13 % and 21 % in the design and construction phases, and between 10 % and 17 % in the operations phase.

The implementation of BIM in Spain is intended to be promoted through, an observatory and commission promoted by the Ministry of Development.

On balance, we will be very watchful of all these developments at both legislative and industry level.


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