May Winfield, Simon Lewis and Andrew Croft explore aspects of the legal section of the UK Guidance Framework for ISO 19650
The UK has been a world leader in the development of BIM. It was the first country to introduce BIM-specific standards, the PAS 1192 series. Some of these standards have recently been superseded with the PAS 1192 series now turned into an internationally agreed standard, the ISO 19650 series, following four years of development.
In particular, Parts 1 (general) and 2 (design and construction stage) were released by the BSI at the beginning of 2019. The equivalent PAS 1192 standard, PAS 1192-2, has consequently been withdrawn by the BSI. PAS 1192-2 can still be specified as a contractual requirement although there would be no reason to do so given that the ISO 19650-2 is, in effect, an improved and up to date version of PAS 1192-2. The next part of the ISO 19650 series, Part 3 (asset management), intended to replace PAS 1192-3, is in the process of being drafted with an estimated publication date of 2021.
The BSI has also published a consultation paper on ISO 19650-5, which is concerned with the organisation and digitisation of information about buildings and civil engineering works, including BIM. This is the security-minded approach to information management designed to replace PAS 1192-5. The consultation period opened at the beginning of July and will end on 28 August 2019. We can expect ISO 19650-5 to be published next year.
How will ISO 19650 be applied?
As with PS1192-5, it is likely that the replacement ISO will apply more widely than just the BIM arena and will concern itself also with the security-minded management of sensitive information that is obtained, created, processed and stored as part of, or in relation to, any other initiative, project, asset product or service. As such it is, of course, very important in the context of the digital built estate.
How is the new ISO 19650 standard to be applied? Lawyers are coming to grips with the terminology and processes of BIM, and may find it takes time to get up to speed with this new detailed standard. Whilst it is based on and developed from the PAS 1192 series, there is a danger in assuming that the ISO 19650 series is identical to it. There are in fact some important differences in terminology, process requirements and legal liabilities. Moreover, notwithstanding the availability of easy to read guidance, awareness and understanding of PAS 1192 is far from widespread in the legal community.
Dr Anne Kemp, chair of the UK BIM Alliance, was conscious of the need for clear guidance and the risks of differing interpretations of ISO 19650-1and 2, and so the UK BIM Alliance, in conjunction with CDBB and BSI, created a Working Group to prepare an ISO 19650 Guidance Framework. Members of the Working Group are providing their time on an entirely voluntary, unpaid basis and consist of leading experts in this area. They include David Churcher, the author of ISO 19650-1 and a number of members were also in the Working Group that prepared the BS EN ISO 19650 Transitional Guidance, PD 19650-0:2019. The author of ISO 19650-2, Paul Shillcock, is a consultant to this Guidance Framework team.
The Guidance Framework will be published in two parts. The first concise part was published as soon as possible to meet the immediate need of the industry to understand the standard, given that it may already be incorporated into contracts. Consequently, it is high level and explores the general requirements of the ISO 19650 series. This high level Concepts Guidance Framework can be downloaded now for free here.
Legal and contractual guidance sub-group
Annex C specifically contains legal and contractual guidance, drafted by a sub-group led by May Winfield (Associate Director, BuroHappold Engineering) and consisting of Simon Lewis (Partner, Womble Bond Dickinson) and Andrew Croft (Senior Associate, Beale & Co). Annex C is intended to provide immediate assistance to legal representatives and others tasked with preparing or reviewing contract documentation to enable them to understand the main actions required to comply with ISO 19650 whilst more comprehensive guidance is drafted.
Conscious of the varying degrees of understanding of both information management processes and the legal and contractual impacts, Annex C is written in an accessible and succinct manner to facilitate easy understanding and implementation. As with the rest of the Concepts Guidance Framework, Annex C does not however provide detailed guidance or, for example, sample BIM documentation.
Annex C is structured so as to set out high-level guidance to the information processes in ISO 19650-1 and ISO 19650-2. A series of action points linked to each section of the guidance summarises the steps that parties should take when implementing the ISO processes.
For example, at step E.3 of Annex C, dealing with managing the collaborative production of information, the Guide sets out the key requirements of ISO 19650-1 and then follows this with two action points advising the user to consider process and protocols for access to the relevant information and for checking and resolving issues in the information models during production and also reminds the user to implement the same “level of information need” methodology when preparing all information protocols on the same project. The Annex is intended to provide an overview of the process from a legal and contractual perspective to allow familiarisation with the concepts and requirements of the ISO. As the ISO begins to be referred to more frequently in tenders it is important that those dealing with the contractual issues understand what the ISO requires.
The Guidance Framework
The Guidance Framework as a whole is an extremely useful summary not only of the more technical aspects of the ISO process but also the larger issues around the importance of information management, the rationale behind ISO 19650 and why it is important to implement building information modelling on a project.
The Guidance highlights that the ISO is written to the level known as “BIM according to the ISO 19650 series”, also known as “Stage 2”. PD 19650-0 (the guidance note prepared to go with the issue of ISO 19650-1 and ISO 19650-2) further explains that this definition consists of BIM Level 2 with elements of BIM Level 1 and BIM Level 3.
The important point to remember is that there is no legal definition of any of these terms and it is therefore not enough for tenders, appointments and related documents to simply specify a requirement to achieve BIM “according to the ISO 19650 series” or “Stage 2” or “Level 2”. It is important to set out deliverables, duties and rights clearly. Difficulties have arisen with BIM-related documentation in the past which relies upon such terms without further explanation as if they were industry-standard definitions whereas they are not.
Hopefully going forward this can be addressed by always bearing in mind the importance of precisely setting out the parties’ requirements and obligations in the contract documentation.
Detailed Process Guidance Framework
A detailed Process Guidance Framework is in the process of being prepared, with estimated publication date in the autumn of 2019.
As part of this detailed Process Guidance Framework, the legal sub-group are preparing an ISO 19650-compliant BIM Protocol. Whilst the CIC BIM Protocol 2nd Edition has been a crucial document in the BIM and information management journey to date, the differences between the PAS 1192 series and ISO 19650 series means that significant updating is required (including to match ISO 19650 terminology).
The aim of the legal sub-group is to provide a clear protocol for the BIM-related documentation in the context of the ISO 19650 series which strikes a balance between being too complicated and not providing enough guidance for those unfamiliar with the process. The new Protocol will be structured in such a way as to minimise wherever possible the need to amend or adapt it to the various contractual situations in which it will be used.
Obviously, parties new to the area should read the Guidance Framework referred to above and the guidance notes in ISO 19650-0 as well as helpful overall guides such as the Winfield Rock report published last year. It is hoped that the ISO 19650-compliant Protocol, in conjunction with the rest of the Guidance Framework, will assist parties in as smooth an implementation of and compliance with ISO 19650 as possible.
For those procuring projects using the JCT contract series and also using BIM, these documents will be further assisted by the recently issued ISO 19650-compliant JCT Practice Note on BIM, prepared by a drafting team led by May Winfield and consisting of Andrew Croft and Dr David-John Gibbs of HKA.
It is important to bear in mind that the Guidance Framework is not a substitute for the ISO 19650 standard. It must be read in conjunction with the ISO 19650 series. Specialist advice should be obtained for specific circumstances.
Upcoming white paper on ISO 19650
May Winfield and Paul Shillcock are in the process of preparing a white paper on ISO 19650, considering the legal understanding and application of ISO 19650 aimed at the legal community and those who instruct them.
They are keen to speak with lawyers and those involved in reviewing and preparing ISO 19650-compliant contracts, to obtain their views. If you or your legal advisors would be open to being interviewed, please contact email@example.com or firstname.lastname@example.org.
May Winfield, BuroHappold Engineering
Simon Lewis, Womble Bond Dickinson (UK) LLP
Andrew Croft, Beale & Co