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8 minutes of reading time (1500 words)

BIM facing legal issues: 5 subjects and 3 specialists!

BIM-facing-legal-issues

BIM never ceases to unleash passions in the construction world. A very big revolution, this digital transition is gradually taking place to improve the work of designers & builders. We are pleased to present you an interview with Sébastien Métayer (Director of sustainable heritage development - Habitat 76), Lionel ray (BIM teacher, National School of Architecture of Saint-Etienne (ENSASE)), David Richard (Lawyer at the Paris Bar - Doctor of Law).


To begin with, what is BIM for you?

Lionel Ray: BIM which stands for Building Information Modeling, Model, Management (and not Marketing) is for me a collaborative working method around digital models, whatever the phase of the project: Design, execution, maintenance and asset management.

It firstly allows all the actors of a project to sit around a table to talk about their working methods, their tools and their future digital exchanges in order to formalize them in a document.

This initial step, which is very important for the success of information exchange in a project, is today very often neglected in “classic” projects because, out of habit, each professional body sends its information to the team without taking into account everyone's ability to properly use the data they provide.
However, poor management of the flow of information actually leads to a drop in the quality of studies, and therefore by extension that of construction.

In a BIM project, the quality of the project can be considerably improved thanks to the assembly of digital models and the realization of numerous pre-syntheses and syntheses at each phase.

Sébastien Métayer: BIM - Building Information Modeling or Management - is a project management process based on the collaboration of all stakeholders. For example, in the context of an operation to build or renovate a residential complex, all stakeholders (project owner, project manager, construction companies, operator, etc.) must collaborate from the design of the program. up to the operation of buildings.

To do this, they rely in particular on a common digital model, which will evolve at the same time as the site, and which must integrate well upstream all the data desired by the client, allowing him to optimize his operation throughout the life of the residence until its deconstruction.

However, for habitat 76, BIM cannot be reduced to new construction operations or major renovations. Indeed, applied to an existing building stock, the BIM GEM (Management Exploitation Maintenance) is intended to improve its management by all the actors intervening on this heritage. Remember that the cost of constructing a building represents only 15% of its total cost throughout its life, and therefore 75% relates to its management and operating cost.

The main objective of the application of BIM is to ensure a better triptych: “cost - quality - deadlines”. 

David Richard : If we retain a synthetic definition, I would say that BIM is a working method based on collaboration around a digital 3 D model, an avatar of a real building. It is undoubtedly a little reductive, but the essential is there: the collaborative process, the data, the 3D and, finally, the building which retains its place.


Do you see BIM as raising specific legal questions?

 

Sébastien Métayer: Beyond the specific legal questions relating effectively from a level 3 BIM where all the actors intervene on the same digital model, the most important thing is to define the scope of intervention of each actor, and therefore the responsibilities of each to through, in particular through a BIM Convention.

Lionel Ray: It all depends on the BIM level you want. If a project is in BIM level 2 then the questions of properties and responsibilities are identical to a non-BIM project, since each actor works independently on his model in conjunction with the others. It is up to the BIM Manager to ensure that the models are correctly located and up to date.
If on the other hand the project is in BIM level 3, that is to say that all the actors work at the same time on the same model, the responsibility of an intervention on this one is not always easy to identify.

The methods and tools are currently more legally suited to a level 2 BIM.

David Richard : Several answers are undoubtedly possible. Nevertheless, BIM induces undeniably new questions in the traditional world of construction and real estate law, and these questions require a specific adaptation effort on this subject.


Can you give us an example of problems specific to BIM? 

 

Lionel Ray: The intellectual property of the objects created within the model is a problem for some designers, since it is impossible with current tools to protect and lock them. This impossibility hinders some people from sharing their models and their data within the framework of a project.

Sébastien Métayer: Like any process based on information systems managing a great deal of data, the primary issue is the interoperability of the different formats used. Habitat 76 has chosen the open IFC format based on a standard where objects and properties are defined. 

David Richard : The legal questions most often associated with BIM concern intellectual property, the liability of builders, to which we could add issues related to public procurement and the MOP law. However, other aspects deserve attention such as the contractualization of the BIM process.


For some, the strong technical dimension of BIM may tend to take precedence over the legal vision in a BIM operation. What do you think ?

 

Sébastien Métayer: BIM is above all a specific project management for the design, construction and operation of a building.

Today, the technical dimension based on information systems is certainly much more important than that relating to the legal one. The latter is notably framed by a BIM Charter and a very precise Specifications for the client, as well as an agreement on the side of companies and project managers.

Lionel Ray: Fortunately, because as I said previously it is above all a working method which must improve the quality of studies, design and maintenance.
Even if we model models in 3D, it remains a method where human relations are very important.

The rules of this collaborative work are defined in several documents: the charters which structure the requests of the contracting authorities; the conventions and protocols which formalize the working methods of project management teams and companies. They frame everyone's expectations, roles and responsibilities, so the legal aspect can rely on them in the event of litigation. 

David Richard : The legal dimension is clearly ancillary with regard to BIM. At the same time, on closer inspection, BIM presupposes an almost permanent relationship to standards, which, although essentially technical, retain this nature, which is familiar to the legal world.

Likewise, the BIM activity is highly formalized. However, here again, this formalization is close to the legal universe. Moreover, the Anglo-Saxons speak of contractual languageabout the drafting of BIM documents, although this mainly relates to technique or management.


BIM regulations are relatively weak today, do you see any changes in this area?  

David Richard : BIM still seems to be largely in the development phase. It is therefore undoubtedly difficult to consider laying down rules, which will be synonymous with constraints. At the same time, countries are making BIM mandatory at least for certain operations. Here, the rule, however very restrictive, will not be seen as a brake, but as a means of developing and promoting BIM.

Sébastien Métayer: Today, regulation is sufficient, but quickly requires an organizational information framework. Indeed, the essential challenge is to have open source open systems and to precisely define the organization of data within the information systems.

Case law will certainly fill in any shortcomings in the context of research into the liability of actors, following issues relating in particular to damage to the structure.

Lionel Ray: I think that legal regulations are sufficient today to govern the majority of BIM projects. It is not an obstacle to the development of BIM.

On the other hand, the improvement of the functions of follow-up of the modifications in the modeling software would allow a better identification of the responsibilities, as well as a better protection of the intellectual property.


For the second year in a row LEXPOSIA is making room for BIM as part of the Legal Assises for Building and Public Works, which will be held on April 2 at the National Federation of Public Works 3 rue de Berri - 75008 Paris (Auditorium Auguste Brûlé) .

This year, the round table devoted to BIM has chosen a strong practical orientation by organizing an exchange on legal questions, enriched by the points of view of our 3 guests interviewed in this article!

Find out more about this event on the official website : https://www.lexposia-events.com/accueil-events?id=681

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comments (1)

This comment was made by the moderator on the site

I orient the reflection onaction of entering the data by a contributor of the digital model.
What do you think of link of subordination between actors around a collaborative project?

I quote and understand that it is "impossible with the tools ...

I orient the reflection onaction of entering the data by a contributor of the digital model.
What do you think of link of subordination between actors around a collaborative project?

I quote and understand that it is "impossible with current tools to ... protect and ... lock" the Intellectual property.
I would go further by putting forward the idea that in the context of a collaboration, it is difficult to distinguish roles of each stakeholder and therefore by nature the responsibility incumbent.

Isn't it counterproductive and non-agile to want to define everything in a convention?
Is it possible to define a framework of co-responsibility? Of take out group insurance between actor of a project?

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Comment last edited about 2 years ago by Jonathan PAPAURÉ Jonathan PAPAURÉ
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