Mike Packham, Partner of Bernard Williams Associates and BIFM member provides the highlights from May Winfield’s recent presentation examining the dark side of the legal issues surrounding BIM and the FM sector…
As I sit writing this article the latest film in the Star Wars series (The Force Awakens) is hitting the big screens; it is going to be a blockbuster by all accounts. Meanwhile, back on earth in the world of facilities management (and construction for that matter) we have our own blockbuster approaching at a rapid rate of knots (although not as fast as a Star Wars X-wing fighter of course!). I am referring to BIM Level 2 which, as we should all know by now, is due to come into force from April 2016.
I have mentioned in previous ramblings on the subject that I think the message about BIM and Soft Landings is finally getting through to the wider FM community. This is borne out by a recent event which I attended which was a sell-out. Organised by the BIM4FM group under the title of “BIM Level 2 – Ready, Willing and Able?” the event started with presentations by three keynote speakers:
- The process framework; David Churcher, Lead Author of PAS 1192-3;
- The systems framework; Steve Owen, Senior FM Consultant, FM180;
- The commercial framework; May Winfield, Senior Associate, Kennedys.
It was followed by a lively panel discussion and I think it is fair to say that the audience concluded that they were BIM Level 2 “willing” but not necessarily “ready” or “able”.
By the time this article is published, a summary of the proceedings will have been circulated so I do not want to say too much more on the subject here. However, much has been said about the benefits to be derived from the use of BIM/Soft Landings and indeed some of the potential downsides. I for one though, had not given much thought to the legal side of things and was particularly interested therefore to hear what May Winfield of Kennedys had to say during her presentation.
Her paper started off in a relatively low key manner but quickly got onto the more worrying stuff that we in FM need to give careful consideration to before dabbling in the world of BIM Level 2.
Thus from a legal perspective, some of the possible risks associated with the use of BIM were identified as arising from:
- Lack of understanding (by all parties in the supply chain but particularly clients);
- Lack of established principles / standard forms;
- Lack of established case law;
- Lack of standardised practices and / or uniform standards;
- New processes and procurement methods.
All of these, of course, have the potential to lead to confusion, inconsistency, misunderstanding and gaps in liability. Not all of these risks can be fully managed “legally” but clear terms and conditions can help to:
- Avoid gaps in liability and misunderstandings;
- Provide clear allocation of risk and responsibility amongst the various parties involved in the project;
- Provide certainty of binding terms in lieu of the more usual non-binding requirements for collaboration.
With regards to the terms and conditions themselves, there are a number of “standard” forms of contract that could be pressed into use (NEC, CIOB and so on). However, it is worth remembering that there is no standard form of FM BIM protocol (although there is the CIC BIM Protocol but this is more aimed at the design and construction stages).
So what clauses are needed for a BIM supportive contract? May’s presentation identified these as falling into five distinct categories:
- Clauses aimed at providing clarity of process and data – in terms of: what models/data is to be issued, by whom and what should the content be; what is the process for making changes; who is responsible for data storage and security (N.B. link to PAS 1192, Part 5).
- Clauses dealing with interoperability, standardisation and consistency – in terms of: what standards are to be used (e.g. PAS 1192 Part 3, BS 8536 Part 1); what data exchange formats are to be used (e.g. IFC, Cobie); the process for information exchange; measures to ensure compatibility of software.
- Clauses on copyright – in terms of: who owns what elements of the model; who owns outputs from the model; what licences are needed for use for permitted purposes.
- Clauses on risk allocation and limitation – in terms of: the use and reliance by the various parties on the data / models provided; unauthorised use and data loss; warranties/indemnification for the integrity of data issued.
- Clauses regarding standard of care – in terms of: the need for consistency across all of the contractual documents (to avoid unnecessary disputes); definition of the standard of care required (e.g. “reasonable endeavours” versus “reasonable skill and care” versus “best endeavours” – all of which have differing legal interpretations).
In summary then, and to return to my Star Wars theme, if applied correctly, BIM and Soft Landings have the potential to deliver many positive benefits and as such can be regarded as a force for the good of FM generally. However we need to beware the “dark side” as represented by the sorts of legal issues referred to above. I suspect that it is only going to be when we get into the post April 2016 period that we are going to fully understand all of the ramifications of BIM Level 2. ■
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