Head of Commercial and Legal – Cities and Digital.
Buro Happold
may.winfield@burohappold.com
Twitter @Buildlaw_Arttea
This week, we have the pleasure to welcome the most important Expert in the field of Legal for BIM in the United Kingdom, May Winfield. She’s a Star in a country and she highly contributes to the development of legal aspects related to BIM which are currently work in progress as the situation, standards, experience on construction are quite recent in terms of history.
Hi May, it’s a pleasure and honor for us to welcome you on ABCD blog. Could you please introduce yourself and your current role to our readers?
I am Head of Commercial and Legal: Cities and Digital at international engineering company, Buro Happold. In this role, I lead the Commercial and Legal team’s support of Buro Happold’s Cities and Digital businesses globally. From the Digital side, this includes working closely with the business to provide legal support and advice to the teams within Buro Happold providing digital and BIM services, and assisting the development of new construction technology and digital data products, services and offerings across our global business. Every day is different, and I enjoy the opportunity to use my knowledge and experience to help the business improve processes and deal with legal and commercial issues arising from construction technology and digitisation, whether it is BIM, modular construction, software or something else.
Outside of my dayjob, I have been heavily involved in development of BIM documentation and writing papers on this topic for some years. I speak regularly at conferences worldwide about legal and contractual issues of BIM and construction technology, and write papers and articles on this these topics. I am the chair of BIM4Legal, which I explain more about below. I am also a Core Team Member of the international 4D Construction Group, member of the Working Groups for the ISO19650 Transition Guidance, the ISO19650 Guidance, the Centre for Digital Built Britain’s National Digital Twins Roadmap and the Digital Twins Toolkit. I am also an Ambassador for the UK BIM Alliance. I have led the teams that wrote the 2018 JCT Practice Note on BIM and the ISO19650-compliant Information Protocol, and consulted/commented on a number of other BIM guidance documents.
What was your background before working in the Construction Industry?
I qualified as a lawyer in 2002 and have worked as a construction lawyer since around 2005. In 2011, I read about the UK Government’s BIM mandate contained in the UK Government’s Construction Strategy, which mandated the use of BIM within centrally procured government projects by 2016. At the time, I was working at an international law firm in London as a construction and construction insurance lawyer. I proceeded to attend many BIM events and research the area in my personal time. People in the industry were very helpful in answering my questions and discussing the issues with me. In 2011 and the couple of years following that, I could find very little research or papers on the legal and contractual issues of BIM although there were vast amounts of data and research on the technical aspects. In between this, I also took a part-time Masters in Construction Law and Dispute Resolution at King’s College, London where I was very honoured to manage to obtain 7 of 8 available awards for my year. My dissertation for my Masters set out a proposed contractual framework for BIM-enabled projects. A version of this paper was published by the Society of Construction Law, and was awarded a prize by them in 2014. This Society of Construction Law paper has been quoted worldwide, and someone once contacted me to say they had mentioned it in a lecture in India. In around 2015, I moved to the large construction company, Carillion, where I was both an in-house construction lawyer as well as taking the lead on all BIM-related legal and contractual matters for projects worldwide. After Carillion’s sad demise, I was looking to work in an organisation that had a forward-thinking but collaborative ethos and utilized technology in a progressive way. I was naturally drawn to Buro Happold as it does both these things, as well as being known for some amazing projects worldwide (such as the Museum of the Future in Dubai, Südkreuz in Germany and Academy Museum of Motion Pictures in LA) and its commitment to sustainability. Buro Happold even has a separate, and highly regarded, computational engineering team. When we first discussed my joining Buro Happold, they were interested in the additional benefits of my digital specialism as it has enabled me to not just be an in-house lawyer to the business, but give informed, specialist support for the many digital and technology services and processes we have and continue to develop across the business and world. BIM and construction technology generally can be quite a technical area and requires years of knowledge or experience to fully understand the issues that can be involved. I work with the BIM team and digital teams to provide training across the business, including to our other lawyers, to enable everyone to understand the important issues involved and how to mitigate or avoid the common issues in a way that is beneficial for both our client and us.
Have you always been passionate about technology and new processes before starting your BIM / Digital related roles at national level? Or was it a coincidence that you entered into that field of expertise?
I actually first got interested in this area due to my love of all things technology and digital. It was the chance to combine my interests with my job! I have been told it is relatively unusual for a lawyer to be so interested in technology but I was coding on computers as a child so I guess my interest has been lifelong. Many of my hobbies remain very tech-focussed – even exercise involves ‘competing’ on my iWatch against a number of BIM and digital directors from other consultancies.
From a personal point of view, when and how did you see this transition to BIM and digital of the UK? Did you understand that it was going to be a kind of Big Bang from many point of views, and by consequence from a legal perspective? And also from an industry perspective switch of course?
I still vividly remember attending the first BIM Show Live conference in UK in late 2011, shortly after the UK Government had issued its Level 2 BIM mandate. The vast majority of presentations were on the finer points of using Revit and the question I kept being asked on meeting people was – “Why are you here? BIM has nothing to do with legal”. During those early years of the BIM journey in the UK construction industry, and across various parts of Europe, the focus was indeed on implementing BIM software and BIM became synonymous with 3D models. However, BIM is so much more, requiring a different and more collaborative way of working (both internally and externally) and a greater release of and reliance on information and data. This became more and more apparent as consultants faced requests for copies of their models for use by contractors, and parties struggled with decisions on the extent of models and data to exchange in the absence of uniform understanding or clear agreement terms. I saw many examples of this from the outset. Even as early as 2012, my consultant clients were seeking advice on what to do when an important client requested copies of their BIM models for use by the contractor despite their appointment having no mention of BIM terms; what could be issued to provide some protection in the absence of clear contract terms. Sadly, this awareness and clarity of documentation is still on its journey. In advising clients worldwide, I have seen how we are still frequently faced with vague or non-existent BIM contract terms and requirements, resulting in confusion and differing expectations, leading in turn to expensive and time-consuming dispute where no one really is going to end up happy. Whilst law is necessarily reactive and slower than overall progress, we cannot afford to ignore its impact on BIM or this ticking time bomb will reduce or even remove the benefits BIM has to offer.
One thing that I have noticed over time, and even now, is that the legal and contractual problems we face are fundamentally the same, whether in the UK, Poland, the Netherlands, Middle East, US, Australia or elsewhere. Anyone involved in BIM would have seen bid documents and contracts which simply ask recipients to “do some BIM” or “achieve Level 2 BIM” or variations on that theme. There is still significant uncertainty about copyright, for example with some contracts failing to mention intellectual property rights for the data and objects within a model (which may need to differ from the models themselves). Contracts often may not explain where liability sits when things go wrong in the BIM process, such as in the event of corruption of data, reliance on old versions of models or issues of interoperability.
However, things are changing. Over the years, it has been gratifying to watch the legal and construction community increasingly engage and exchange experiences and knowledge share in this area in a way that we are not perhaps known for. I have spent many hours and a lot of my ‘leisure’ time over the years highlighting the crucial issues of legal and contractual BIM, both in papers and in person. However the moments are becoming vastly more regular that I receive feedback about how teams and organisations have progressed and risk managed their BIM contract documentation and legal/contractual awareness, and seeing how far we have all come in that journey since 2011, makes it worthwhile. I was reminded of this when I again attended BIM Show Live over the last 3 years, but this time as a speaker about legal and contract BIM, to a full audience. BIM guidance and documents are now is often accompanied by a legal section, as can be seen in the ISO 19650 Guidance available on the UK BIM Alliance website. I had the honour of being keynote speaker at BIM conferences in 2018 in Berlin and Porto and speaking at a BIM conference in 2019 in Johannesburg, indicating this awareness of the importance of getting the legal and contract side right applies worldwide. The attendees at the conference in 2011 would have been confused at a legal speaker or legal guidance, they would think – What do you mean BIM could cause increased or confused liability and disputes?
You founded a very important Group called “BIM4Legal”. Could you please explain to us a bit more why you decided to create it, how it’s organized and what’s its goals?
Another construction lawyer named Sarah Rock of Gowling WLG and I both work specialising in BIM matters. When discussing BIM in 2017, we discovered that we both were experiencing that there seemed to be a low understanding of legal and contractual issues of BIM among lawyers and the industry. We wanted to discover if this was true. At the time, there was only one reported court case even slightly touching on BIM so we set out to discover the position in September 2017 which led to us writing the Winfield Rock Report. We had a survey, which received 158 responses on the use of BIM and BIM documentation and also interviewed 44 individuals from a mix of clients, contractors, consultants, academics and lawyers – some from the large projects in the UK. The Winfield Rock Report was launched in association with the UK BIM Alliance at BIM Show Live in the UK on 28 February 2018.
During our interview process and research of the 2018 Winfield Rock Report, we discovered a worrying lack of understanding among the legal community and equally a perception in the construction industry that lawyers didn’t understand BIM. This led to the formation of BIM4Legal (@BIM4Legal), a neutral forum for the legal community to upskill and increase knowledge about BIM, to enable them to better advise their clients. Since its formation, event attendees have shifted from being primarily construction industry individuals to a significant number from law firms and in-house legal teams; the importance of getting the BIM contract terms right. However, we still have some way to go within the legal community, which still may regard BIM as “CAD on steroids” (as mentioned by a lawyer interviewee of the Winfield Rock Report) or a “dark art” (as one lawyer told me personally).
Have you straight away felt the need and necessity to change the Construction Industry’s laws and regulations to be prepared for this digital transition? If yes, was it something difficult, huge and how have your peers reacted to that? Were there many resistances?
Digital transformation is a significant change for the construction industry. It is important for laws and regulations to be accurate and useful, reflecting the best practices for the area concerned. This is only possible once there has been sufficient common use of the digital technology concerned to learn from real-life experiences and views. Conversely, it is important not to wait too long to set out a regulatory framework to ensure there is standardization of best practices and processes, thereby reducing potential misunderstandings and disputes. There will indeed be resistance to regulations as there is to any significant change or new control to ways of working. There still remain very few laws and regulations aimed at specific digital technologies, e.g. smart contracts, BIM and modular construction. Drones is an exception to this as it has detailed regulatory frameworks in many countries, but this is arguably due to the various important health and safety and privacy issues that drones use gives rise to. Even BIM is governed by standards, which become enforceable by contract, rather than a legal or regulatory enforceable framework.
Indeed, which aspect of the law have you been working on to get it changed? What’s the real impact in terms of companies organization, responsibilities, insurances impact, etc.?
It is important to be sensitive to the fact that technology and digitisation will be used to different degrees and in different ways depending on the size of the project, the size of the parties and the needs of the client. There is no ‘one size fits all’, just like there is no one type of construction that suits all clients. Implementation has been by way of standards and processes to promote and require best practice and standardized ways of working to facilitate this necessary flexibility. Coupled with this, the UK Government has carried out various research and analysis by way of pilot projects and White Papers (asking for industry views) whilst also collaborating closely with industry (e.g. via the Centre for Digital Built Britain) to ensure there is a continuing process of improvement and refinement in our digital journey.
Digitisation has had widespread impact on companies. From the way they collate, store and share information to the way they collaborate with their client and other project team members, as well as the consequent responsibilities and rights of all concerned. The ongoing unresolved problem is that the legal and contractual consequences of this often still does not get the attention it deserves. If a party is sharing data and information using a new format or platform, or a client has certain requirements relating to the use or output of the technologies or digital processes being used, is it clear who is responsible for corruption or unintended amendment or loss of the data and information? Is there a common understanding of what would adequately fulfil the client’s expressed criteria? Who owns the different elements of the data and other outputs being produced from the processes? A failure to clearly clarify these issues leads to potential misunderstandings, differing expectations and, ultimately, expressive and time-consuming disputes. There is also the important aspect of insurance. When the UK Government first issued their BIM mandate in 2011, I advised various leading insurers on the potential impact and consequences on existing professional indemnity policies and I recall that many, at the time, decided to adopt a ‘wait and see’ attitude to BIM. Insurers accept that BIM and digitisation can generally reduce risk and improve efficiency, which is obviously beneficial for both insurers and insured. However, some insurers do require more declarations about their use than others, such as notification if a party is acting in a new BIM-specific role outside its normal role as, for example, an architect or engineer. In this regard, it is always worthwhile having a discussion with one’s insurance broker to confirm whether BIM or another intended technology (e.g. drones or smart contracts) impacts insurance cover or requires any additional information to be submitted to insurers. Better to clarify this early than find there is a risk of being uninsured if something goes wrong.
You’re currently writing the History. It must be very exciting. Is there already a big jurisprudence in terms of BIM?
It is very exciting times. When I first got involved in BIM in 2011, and got told by many people – including my boss at the time – that it was a waste of time as there were no legal issues, I could never have imagined that I would be where I am today. BIM and construction technology is a constantly changing area and what we can increasingly achieve with the digital tools is so exciting. I still get amazed and thrilled at having the opportunity to watch demos of new technology, whether it is Spot the Dog robot or a new 3D real-time visualization tool. My mind then immediately goes to consider the legal issues and liability risks that these could give rise to. Those in the BIM industry are used to my, perhaps sometimes irritating, questions at the end of talks and demos to understand more about how they are tackling these issues. I have tried my best to then pass this information and knowledge on, and I speak frequently at conferences and write articles and papers to help awareness and provide some further resources in this area, as well as always being open to discussion on the topics and providing additional resources via the BIM4Legal events.
From my contacts in the construction industry worldwide, I am aware that BIM disputes are happening about the content of models and parties’ obligations regarding BIM, but there is very little formal case law at present. This will no doubt change as projects which had early, unrefined BIM requirements and contract clauses, or no formal contract clauses at all, conclude and disputes arise regarding fees or other completion issues. There was what is being considered as the first BIM case in the UK, Trant v Mott Macdonald. In this case, Mott Macdonald, the Information Manager, withdrew access to the CDE when there was a fee dispute. Trant, the contractor, only regained access after taking the case all the way to the Supreme Court and then only access was granted on a temporary payment of a significant sum into court until the dispute was heard in full. The problem was, apparently, that not only was there no signed contract, the contract did not deal with the CDE in detail including when access could be withdrawn. So both parties believed their position was justified and correct. This dispute could have been avoided if there were clear contract terms on parties rights and responsibilities in the BIM process.
In the Netherlands, there are a few more reported cases, and the esteemed academic and specialist in BIM, Evelien Bruggeman, has written a useful blog on this (https://www.linkedin.com/pulse/bim-procurement-law-netherlands-part-4-use-model-tender-bruggeman/).
From a project lifecycle perspective, which phases are more impacted by BIM legally speaking and how?
From a legal perspective, the pre-contract stage is the key time to deal with the legal risks and issues regarding BIM. A failure to set out the parties’ expectations for BIM in the project within the contractual documentation, including rights, obligations and intended processes, is a ticking time bomb for misunderstandings, differing expectations and potential disputes.
A big and basic question: In France, many AEC professionals are asking for the property of the BIM model. Who finally owns it/them? The owner, the architect, the construction company? And what about the intellectual property, whether it’s from an engineering or architecture perspective as these 2 aspects are different?
This was one of the first big concerns for authors of BIM models and data when BIM processes became more commonplace. I recall a detailed debate on Linkedin in around 2012 or 2013 between European and American consultants, where the European consultants felt the intellectual property should be retained by the original authors whereas the American consultants explained it was standard for intellectual property in all the BIM data to transfer to the client. Their explanation was that, otherwise what was the client paying for? The reality is more complex and requires one to remember that a BIM model consists of different components from an intellectual property perspective, primarily the model itself, the design, the objects and the other electronic data within the model (including data that can be produced from the model). It is possible for different parties to own these different components. For example, a designer may want to retain intellectual property of their design, but are happy to give up ownership of the model itself, and the objects within the model may be owned by the manufacturers of the objects or ownership transferred to the client where possible. What does ownership of the model and objects mean in practice in this context? This will come down to the clauses in the contract which will specify what rights each party has over the different components. For example, I have seen many contracts that specify:
- the designers retain intellectual property or ownership of their design with a licence being granted to the client to use the design for all purposes related to the project;
- ownership in the models is transferred to the client, and they are free to do whatever they want with the models subject to the licence restrictions regarding the designs that form part of the models
In this regard, ownership and intellectual property rights mean the same thing, in practical terms. However, arguably due to many lawyers lack of full understanding of how models are put together, it is only very recently that I have seen contracts also deal with who has ownership of the objects and other electronic data contained in the models. Many contracts that seek to transfer ownership of models to a client also seek to transfer ownership of all electronic data within them, but the designer may not have the right or authority to transfer ownership in such elements. A most common example is objects licenced from a manufacturer. This may not be realized by either party until the actual owner of the relevant electronic data raises an objection to a client’s intended use, resulting in an unhappy client raising a complaint for breach of contract against the designer concerned.
In the UK, BIM is mandatory for all public projects. But what about the private sector? Is it impacted by this mandate as well? And do your BIM related laws also apply for the private sector or not?
After the 2011 BIM mandate, the UK Government made a lot of effort to evidence the benefits of BIM via pilot projects and other steps. This assisted in providing concrete evidence to the private sector of the costs, time and quality benefits and savings that BIM had to offer, encouraging a wider adoption of BIM. Industry groups like the UK BIM Alliance have also been instrumental in making BIM (in their words) “business as usual” within the wider construction industry, via knowledge sharing, published research and accessible events. I am a UK BIM Alliance Ambassador and have seen how the private sector’s response to BIM has increased rapidly as there was both evidence of its benefits but also a significant amount of available resources and assistance to facilitate easy adoption and understanding.
One thing to remember about BIM from a legal perspective that, in the majority of countries including the UK, BIM standards such as the ISO19650 series have no force in law and it is still very rare for there to be BIM-specific laws or statutes. BIM standards apply via being imported into contract terms or via regulatory requirements, such as the Singaporean planning submission requirements specifying use of BIM. The various BIM standards worldwide are written to apply to all types of projects, whether public or private sector, as BIM is applicable to both. Equally, the problems arising of simply including a specification to “Do BIM” in a contract carries the same risk of confusion and uncertainty in a public sector project as a private sector project.
Are you also working on IoT aspects CDEs, Digital Twins and by consequence, big data, data property topics and the digital data continuity as well?
Indeed I am involved in many aspects of digitisation and construction technology. Arguably, many of them interlink to each other. For example, digital twins and modular construction use 3D modelling. Ultimately, all the digitisation and technology comes down to data and process, and many issues and problems are the same – although how you solve them changes depending on the type of technology involved. I have written various papers on drones, 3D printing and Construction 4.0. Most recently, I just finished writing a chapter for a book collecting chapters from different authors on construction technology. My chapter considers the legal and contractual obstacles and issues arising from digitisation, digitalisation and technology, and how these could be overcome. I am also involved in various industry groups, including being a member of the Centre for Digital Built Britain’s Digital Twin Roadmap Working Group, and their Digital Twin Toolkit Working Group. There are some really exciting and useful tools and guidance coming out in that area.
Within Buro Happold, I also have the pleasure of working with the teams to develop Buro Happold’s service offerings in the areas of digital and data, such as new services regarding golden thread (which is all about data continuity – https://www.thenbs.com/knowledge/what-is-the-golden-thread), digital twins, information management and, most recently, even a useful software tool called Workplace Analytics (https://www.burohappold.com/specialisms/analytics/workplace-analytics/)
As the UK built almost everything from scratch, did you get some inspiration from another sector like the manufacturing industry or did you completely invent everything?
We learnt a lot from other sectors like manufacturing and the auto industry, who have gone through the digitisation process. However there are many things which are relatively unique to the construction industry. Many sectors which are highly digitized, like the manufacturing and auto industries, refine the design of a product before repeated or mass production. Comparatively, with some exceptions such as some residential housing developments, each construction project is completely or largely unique. Therefore whilst we can learn from other sectors, the precise application and implementation of digitisation and technology within our industry must be shaped to cater for the specific way our industry functions.
Experience and lessons learnt from previous projects is invaluable but we cannot simply replicate what has been done before. Processes and requirements need to be adapted to suit the particular situation. It is sadly not completely uncommon to see the reverse of this; for example I’ve seen the identical BIM requirements in different bids for entirely different projects, I assume prepared by the same consultant from their template without amendments.
What are your collaboration with other countries in terms of BIM and legal aspects? Are they expecting a lot from you? Is it a big pressure to be leaders?
I understand that before the BIM standards and processes were formulated by the UK Government, various visits and discussions were held with other countries implementing BIM to understand and learn from their experiences. As the UK was ahead of many other countries in formalizing BIM standards, there have been various contingents from other countries who have visited to, in turn, understand how the UK has done this and how this could be used to assist their own implementation and avoid some of the shortfalls or problems we encountered. For example, a couple of years ago, a contingent from Vietnam visited for this purpose. I was one of a number of BIM specialists who gave presentations to them and answered their queries. I summarized the legal and contractual setup and issues encountered in BIM, including how BIM is being incorporated into contracts; I think they found this quite useful as they were thinking of using similar style of contract terms. I have been invited in recent years to present the UK’s legal and contractual BIM journey in opening keynotes at BIM conferences in Berlin and Porto, and as a speaker at a conference in Johannesburg. I was meant to present similar content at further conferences in the Middle East and elsewhere but the pandemic delayed this! I find people are very interested to understand our experiences of the last 10 years. In the same way we learnt from other sectors, equally other countries look to learn from some of our experiences (good and bad!) so they can form their own processes and framework that works best for them.
The UK is definitely leading the way in Europe and in the world. And we can clearly see from all your actions, strategic initiatives, regulations, standards, etc. that it’s starting to pay off and that nobody will stop you. With this fantastic strategy and means, is digital and BIM growing as fast as expected? And is it as successful as expected?
Compared to sectors such as manufacturing and auto industry, construction does not readily embrace change and progress. Arguably, the industry has, in some ways, not significantly progressed from the bricks-and-mortar industry of 50 years ago. According to the Committee for European Construction Equipment, the civil engineering and construction sector is apparently one of the world’s least digitized sectors, particularly in Europe (as mentioned in https://www.ice.org.uk/news-and-insight/the-civil-engineer/november-2019/difficulties-digital-transformation-construction). The disastrous long-term impact of this fear of change, including embracing technology advances, was emphasized in the compellingly entitled 2016 UK report, The Farmer Review of the UK Construction Labour Model: Modernize or Die (http://www.constructionleadershipcouncil.co.uk/wp-content/uploads/2016/10/Farmer-Review.pdf).
Some of your Industry leaders are also saying that we should go back to basics and not let anyone behind. Does that mean that many small and medium companies struggle to make this transition?
Moving from traditional methods to BIM can be a costly exercise at the initial phase, with software, hardware and training. Whilst the later benefits justify this initial expenditure, it may be a difficult decision for smaller organisations. Regardless, many smaller organisations in the UK are pioneers in BIM process and recognize the savings and benefits it provides to their organisation even where there are no formal BIM deliverables. Cost, uncertainty and lack of understanding remain barriers for smaller and medium organisations however. This sometimes can come from a lack of realization that the level of adoption of BIM depends on a party’s role and may not need much cost at all. For example, a small sub-consultant may only need access to a free BIM mode viewer to participate in their aspect of the BIM process, or be able to submit appropriate information to be inserted into the BIM data or COBie spreadsheet. Increasing awareness and providing support will overcome the concerns and enable organisations to have the knowledge and skills they need to remain competitive as BIM becomes a commonplace part of design and construction. It is also vital to bring BIM back to basics as there is a lot of misunderstanding within the industry about BIM, even within big organisations. There are different understandings of what constitutes best practice for BIM processes, how the standards should be applied and how BIM should be detailed in the documentation. This misunderstanding can only cause issues and problems between parties but can be resolved by overcoming any confusion that still pervades about BIM, what it is and how it should be applied by parties.
In France, several Industry Leaders and some trade organizations are against any BIM Mandate, stating that it would neither change the game, nor accelerate its adoption (in France we have an average of 17% adoption rate, except for big companies). And the French Government is also against it. What’s your point of view and has it been difficult to create a BIM Mandate? Has it put some companies, especially small and medium ones, in difficulty, not being anyme able to compete against the others, creating therefore an imbalance on the market?
The BIM mandate in the UK had advocates and critics at the time. However what it did was significantly accelerate adoption. Companies were forced to look at BIM seriously and consider how to adopt it, than simply say it is another craze that will go away. It is due to the BIM mandate that the PAS1192 suite of standards were produced, which in turn were used as a basis for the ISO19650 standards being adopted internationally. The BIM mandate also indicated the Government’s firm commitment to progressing BIM within the industry, which continues with the UK Government’s 2020 Construction Playbook which has many references to BIM. This investment, including in pilot projects and research, in turn encouraged the private sector to adopt BIM. It is now normal for all big projects to contain requirements relating to BIM in the UK. The construction industry is known for moving very slowly, and there are many studies which compare our industry negatively against the manufacturing and other industries in this regard. Without at least some obligatory adoption, our industry is unlikely to take the risk and uncertainty of adopting a new way of working.
By the way, what’s your analysis of how BIM is evolving in the world? And how regulations and laws around mandates seem to be defined and applied so differently? Would you prefer everything to be harmonized? Are you involved in such discussions at the EU BiM Task group?
The BIM journey will always be a bit particular to the way the construction industry operates in a particular country, and the laws and contractual framework of that country. Nonetheless, the problems, issues and experiences of BIM are very similar worldwide. For example, many parties will have received specifications which essentially ask them to “Do some BIM”. Concerns and confusion regarding copyright of the different elements comprising a BIM model and process are common. However, the evolution of the formal implementation and contractual side of BIM is fairly fragmented across the world. It arguably falls into 3 types of implementation: mandates (e.g. in the UK, Singapore and Wisconsin in USA); ad hoc or unofficial requirements (e.g. French Article 42 of Decree 2017-1097, and requirements of public authorities such as the Swedish Transport Authority); standards implemented by contract (e.g. ISO19650 and the ISO19650-compliant Information Protocol – which forms part of the UK BIM Framework; the US National BIM Standards and the standard BIM documentation, AIA suite and ConsensusDOCs). There are then various guidance, such as the BIM Dictionaries (which are in many languages and invaluable for international parties working on the same project – put simply, so when someone says an apple, others don’t think they mean a pear), the guidance published under the UK BIM Framework, and the EU BIM Handbook. The aim of the international standards, ISO19650, was to provide greater harmony and consolidation across the worldwide construction industry in its implementation of BIM. Given the international nature of construction – French, German and British consultants may all be working in a project in the Middle East, for example – a unified way of working and understanding seems logical and sensible for all concerned. I have been actively involved in the preparation of the ISO19650 guidance and some other ISO19650-related documents within the UK, but there is still much to be done to continue the harmonization process worldwide and I have tried to make my small contributions to this at conferences and involvement in various industry groups. I have not had the honour of being involved with the EU BIM Task Group directly, but would welcome the chance to provide support and detail of the lessons we have learnt to date to inform the continuing BIM journey.
What are the next big steps in terms of law adaptation or creation in the UK regarding BIM and Digital?
As regards BIM, we are currently progressing the development of the UK BIM Framework, which implements the ISO19650 international standard. We still have some journey to go to make BIM business as usual, but we have made tremendous progress in the last 10 years. As regards other areas of digital technology, consideration on the development of appropriate laws and regulations for AI and smart contracts are already being seriously contemplated. I would expect a regulatory framework around the use of robotics and modular construction within the construction industry to follow suit given the rising popularity of these technologies within the industry. Such legal and regulatory framework will assist parties to uphold (and rely on) best and safe practices in implementing such new technologies, as well as possibly encourage adoption as clients and others will feel reassured it is not the ‘Wild West’.
When do you think that UK will be fully digital and BIM ready? And what will happen before? Won’t you feel orphan? 😊
I think it is safe to say it may be a few years before the UK is fully and completely BIM ready, and I am excited to be participating in the process to that goal. As regards digital, I would argue that digital and digitisation is a never-ending journey. There is always a new development, improvement or refinement in the digital process, whether it is computational construction, robotics or machine learning, that can help progress our industry. In recent years, I have had the opportunity to be involved in industry groups in various of these areas; most recently being part of a working group that has recently issued a Digital Twins Toolkit (available for free on the Centre for Digital Built Britain website). I still get exceptionally excited to understand a new element of digital technology and I expect I will be continuously working at understanding the latest useful piece of digital technology for many years to come. I would indeed feel lost without having construction technology to entertain my brain!
We often ask the question of Women in BIM on ABCD Blog. Although we know that the UK have some Stars like You May and others, are there many Women in that field in the UK? And is it challenging on a daily basis, knowing that the Construction Industry is not quite balanced? What’s your feeling about it?
Thank you. That is very kind. I have always found the BIM and digital communities very welcoming and supportive to everyone. Whilst there are fewer women than men, as there are in the construction industry, many people in the communities are drawn together by their passions in this area and they do not judge by gender, age or race. In some ways, it has been more challenging being one of very few lawyers in these communities, and being the one to raise the ‘boring’ (but crucial) questions and issues about risk allocation, potential liability and – do parties have a common understanding what they’ve agreed to achieve with the technology?
What would you recommend to a country deciding to mandate BIM? What would be the strategy to be in place from a legal perspective and the big steps to follow carefully?
From my observations, a BIM mandate has a great many benefits. The construction industry moves slowly and is generally risk adverse. A mandate obliged the industry to move faster in adopting BIM and, in the process, they will experience the various benefits it has to offer whilst being reassured the rest of the industry is having to make the same cost and risk investment into it. It is helped now by the various examples, e.g. in the UK, of how a BIM mandate can be implemented and the presence of standards and contractual frameworks that can be adopted (e.g. the ISO19650, the ISO19650-compliant Information Protocol, the JCT Contract 2018 Practice Note on BIM, and others). From a legal perspective, it is so important to have readily available, easy to understand BIM terms that can be easily inserted into the commonly used standard form contracts. They need to be easy to understand as many people drafting the contracts, or reading them, will likely not have detailed (or perhaps any) knowledge of BIM. I have seen too many examples over the years, across the world, of parties ending up in disputes due to the lack of BIM terms for a BIM-enabled project, or due to vague BIM terms which lead to differing expectations and misunderstandings.
Has the Brexit changed anything in your plans in terms of laws and regulations for BIM? BIM being so international, will you stick to the worldwide rules or will you develop a UK BIM oriented regulation?
The great thing about BIM is that it is without borders. From my experience in meeting many people worldwide, the most common problems that the construction industry faces in implementing BIM and overcoming the issues are the same in the UK, France, Australia and South Africa. I have found the community always keen to learn from each other, particularly, as you say, because BIM is so international.
We are taking many steps to help the UK construction industry to understand and implement the international standards for BIM and information management, ISO19650. I am part of the working group that has developed the Guidance documents about the ISO19650 and I led the team that drafted an ISO19650-compliant Information Protocol. I think it is the first ISO19650-compliant Information Protocol to be published and is discussed further (in French) in a LexisNexis article I co-wrote with the very knowledgeable, David Richard.
These Guidance documents and Information Protocol form part of the UK BIM Framework (https://www.ukbimframework.org/) which sets out the approach for implementing BIM in the UK using the framework for managing information provided by the ISO 19650 series. The UK BIM Framework recently received strong UK Government support as it was mentioned in the UK Government’s 2020 Construction Playbook, which says that “Contracting authorities and suppliers should apply the UK BIM Framework. This includes standards, guidance and other resources” and that “Contracting authorities should use the UK BIM Framework to standardise the approach to generating and classifying data, data security and data exchange, and to support the adoption of the information management framework and the creation of the national digital twin”. This shows the commitment in the UK
What would you like to say to our French and international readers?
I know people may still be questioning the relevance or importance of legal and contractual issues when it comes to BIM and digital technology. There is also an unfortunate lack of many resources and guidance in this area. I would urge your readers to take these issues seriously, to avoid expensive and time-consuming misunderstandings and disputes. I hope the documentation we have compiled in the UK BIM Framework website will be useful reference points in their journey in this area. This website is not just relevant for BIM but for digital information management generally, given that the ISO19650, on which it is focused, covers overall digital information management – which is one of the cornerstones of digital technology.
Did you know ABCD Blog before? Feel free to say no 😊
I regret I did not, but I am so pleased to have found out about your excellent blog! I have already learnt many things from reading it.
What are your passions out of your involvement at National level?
I am very passionate about helping the industry to continue to progress and improve in the area of digital and digitisation. There is a lot of work still to be done worldwide and I hope to have more opportunities to work with my international colleagues on this, hopefully providing useful assistance based on my experiences and involvement in this area over the last decade.
Dear May, thanks a lot for this amazing interview and your vision and leadership. We wish you all the best in this exciting journey.