A lack of understanding of what it means legally to deliver projects to BIM level 2 – as mandated on public contracts since April 2016 – has been highlighted in a new report.
Overcoming the Legal and Contractual Barriers of BIM was launched today at BIM Show Live in Newcastle. The report was researched and written by May Winfield senior legal counsel at ENGIE Services and Sarah Rock, senior associate, at Gowling WLG.
Say the authors: “As BIM Level 2 grows in maturity and becomes increasingly a contractual requirement this report reflects upon the need for better understanding by lawyers, whether through self-driven learning or coming together.”
Of 44 industry people interviewed for the report, all gave a different definition of what Level 2 BIM involved.
“Both authors of this report have seen contracts which contain something akin to the magical phrase ‘The project shall be delivered to BIM Level 2’. Such clauses were included without any clarity or discussion of what that actually means in terms of parties’ obligations, rights and deliverables,” the report says.
In response to the findings, the two authors have set up a new group, BIM 4 Legal, which aims to bring lawyers together and to facilitate further discussion.
The report also includes a brief checklist of questions intended to assist a lawyer new to BIM to gain clear instructions from their client.
Broken down into six sections, the report looks at levels of maturity, the PAS 1192 suite of standards, integration of BIM into standard form contracts, BIM-specific documents and the legal community’s awareness and knowledge of BIM, as well as looking at some possible next steps.
Winfield commented: “It is fair to say that the industry’s perception is that the level of BIM knowledge and awareness within the legal community is not high. Whilst there is in fact a growing knowledge of BIM within the legal community, there is a clear need for greater understanding of the processes, BIM-specific contract terms and documents and improved collaboration with their technical colleagues.
“This was emphasised to us by interviewees during the research process as being required and our report reviews how to take this further."
Whilst both authors acknowledge the importance of other standards, BIM has been shaped in large part by the development of the PAS 1192 suite of standards. The report again highlights significant inconsistencies in its application.
Rock added: “Our research showed an inconsistent approach to the application of the PAS 1192 standards, with some interviewees experiencing the ill effects of an overly zealous and rigid interpretation.
“Other participants, meanwhile, felt the suite was being used too flexibly, with some project participants picking and choosing the standards that suited. We found that the most pragmatic way to utilise the PAS 1192 suite of documents is to again consider their use and application on a project-by-project basis.”
However, the main consensus was that the definition of the level or even the term BIM itself generally needed to be assessed on a project-by-project basis.
Where there is a requirement to “achieve BIM Level 2”, as is relatively frequently seen in tender and contractual documents, “it is in all parties’ interests to discuss and agree what this will actually involve from a project-specific risk allocation, services and liability perspective to avoid potential disputes arising from differing expectations”, the authors urge.
Winfield commented: “Despite the perception otherwise, within both the construction and legal industries we were heartened by the spirit of collaboration amongst the 158 people who completed the online survey and the 44 key industry players who were interviewed.”
Interviewees were also questioned about how they perceived the level of BIM knowledge/awareness within the legal community. One comment that was repeatedly given was that there seemed to be a disconnect between lawyers and technical people.
Lawyers were perceived to have little grasp of the working of BIM projects and to fail to understand how BIM documents related to the other contract documents and terms.
“The perception that lawyers becoming involved created a heightened sense of fear of risk was mentioned by some interviewees. Whilst others commented that they felt lawyers had been jumping on ‘BIM bandwagons’ without adding anything of real substance,” the report states.
Lawyers who commented that where the client’s understanding is little better than the lawyer’s own, clarity of instructions can be difficult to obtain.
To get a copy of the report please complete this short form via this link http://bit.ly/2CNIOFp