By Christoph Mank, K&L Gates, Berlin
In recent years, numerous issues have accumulated in connection with the realisation of large building projects planned and financed by the public sector, such as the new international airport in Berlin, the Elb-Philharmonie in Hamburg and the Stuttgart 21 train station project. In particular, issues included delays, huge cost increases and communicating the projects and the attendant problems affecting the public. The ensuing discussions in the German public triggered the formation of a reform commission by the Federal Ministry of Transport and Digital Infrastructure (Bundesministerium für Verkehr und digitale Infrastruktur), called “Bau von Großprojekten” or “Large-Scale Construction Projects”. One recommendation in the reform commission’s final report is that Building Information Modelling (BIM) should be implemented in Germany.
What is BIM?
BIM refers to a cooperative work method based on the digital modelling of a building that consistently gathers and manages the data relevant to a building’s life cycle and, by means of transparent communication, ensures this information is exchanged between the parties involved or is transferred for further processing.
Or, quite simply put: first construct in the virtual, then in the real, world.
The aim is to minimise the risks involved in construction projects and to shorten the actual construction time and reduce costs; a further desire is to achieve improved project communication with the public by creating a visual representation of the project using digital planning.
BIM is already used on a regular basis in European countries such as the UK, the Netherlands and Norway, and also in the United States. BIM is still in its infancy in Germany. The public sector — led by the Federal Ministry of Transport and Digital Infrastructure — now intends to promote the implementation and dissemination of BIM in Germany by means of a phased plan. If all goes according to the Federal Ministry’s plans, BIM will be regularly applied for all transport infrastructure projects in Germany from 2020 onwards. Bearing in mind that there are currently only four public-sector pilot projects, two for road engineering and two for railroad construction, this seems rather ambitious. An extensive application of BIM requires market participants have corresponding knowledge and skills; it can be assumed that a huge backlog exists in this respect.
Are changes to the legal framework required?
According to the Ministry, introducing BIM will not require extensive reform to Germany’s planning and construction legal framework. However, consequences for legal policies and common contract forms and models are inevitable. Debates in the coming months and years will demonstrate whether the need for change has been underestimated. At present, the legal amendments being discussed are in connection with procurement, pricing and contract law.
However, considering contract law alone, the introduction of BIM could give rise to an unpredictable need for solutions. It is doubtful whether the commitment to cooperation required of all parties by BIM is adequately reflected in the current system of individual contracts. It is possible that a sui generis system of multi-party contracts has to be developed for BIM that at present neither exists nor is applied. It is impossible to foresee the repercussions cooperative BIM will have on the allocation and distribution of liability; it must therefore be expected the insurance industry will intervene in the just-begun debate.
As the anticipated benefits of BIM far outweigh the risks and challenges posed by its introduction, it is expected that implementing BIM for civil engineering projects will gradually lead to its adoption into large-scale and, subsequently, small-scale construction projects.
BIM affects not only the planning and construction phase; the model’s information is relevant to the entire life span of a property, including the building’s operation and maintenance after it has been completed and handed over. BIM is, thus, not only immensely significant to the construction industry, but also to the real estate sector.