We now have a government mandate to use BIM Level 2 for all centrally procured construction projects and the take-up of BIM usage is broadening out into the wider public and private sectors. Officially the concept of Level 2 is entirely compatible with established commercial arrangements. The CIC BIM Protocol (2013) is the key document here, agreed with the legal and insurance sectors. However, there have always been concerns in some quarters. JCT itself does not endorse the CIC Protocol in its entirety as it claims to override the contract in the event of discrepancies. There are other concerns about liabilities falling on the client.
The Centre of Construction Law and Dispute Resolution, King’s College London has just published a research report, based on extensive conversations with clients and BIM users, on how well BIM Level 2 is being enabled by procurement and contract practices. This is with a view to overcoming issues and preparing to move towards BIM Level 3. The full report, which is being considered by the JCT BIM Working Group is available to read on http://www.kcl.ac.uk/law/research/centres/construction/Centres-Publications.aspx. This article will summarise the research and its conclusions as seen by this observer.
BIM affects the legal liability of users insofar as those providing reasonable skill and care need to be able to show that they know what they are doing in BIM terms. The law requires even pioneers to be prudent. The need to review the work of other firms in the team and to warn of error may be increasingly onerous as more searching access is given by BIM.
BIM is mentioned in JCT Contracts, although the research indicates it is not mentioned in most standard contract forms. But BIM-related issues do arise, in the agreement of interfaces and of deadlines for submissions, and in relation to clash detection, early warning and risk management. Collaboration is a key dimension of good BIM practice and some forms of contract address this need formally. The main way in which BIM is attached to the contract is through a BIM Protocol. A model protocol was produced in 2013 by the Construction Industry Council (CIC) and this became one of the 8 standard documents of the UK BIM Toolkit. There are some differences in how the model protocol relates to each of the standard forms of contract, with JCT in particular having concerns with the un-amended wording, as noted above.
The content of the CIC Protocol also concerns some clients and their advisers as it dilutes some of what clients have previously expected and adds duties. They need to be told clearly that this has occurred. The integrity of electronic information is not guaranteed by the software providers or design team; no liability to designers follows if their work is altered by others or used beyond agreed purposes and the licence to use any model can be withdrawn if the supplier is unpaid. The client has to obtain substantially similar protocols from all team members.
Clarity of the contractual status of BIM documents needs to be achieved. There are differing interpretations in circulation about what can form part of binding contractual documents and what is supporting material. Elements within the BIM Execution Plan, including the programme for each party to provide contributions, are particularly varied in treatment. Clarity is also lacking in practice over the role of the Information Manager set out in the CIC Protocol. Different terms are in use and BIM consultants from outside of the team are sometimes being used without clarity on their design or management responsibility.
The evidence from early BIM projects is that procurement routes do affect the results achieved from BIM. Early contractor involvement pays back, as do open book and partnering styles of working. Team formation from an established framework or experienced multi-discipline alliance helps with the speedy set-up of an effective group. The trend in government procurement towards whole-life, outcome-based goals is helped by the use of BIM and the data it can provide for analysis and for ongoing facility management.
The report concludes with thoughts on forms of procurement and contract suitable for BIM Level 3 where it is assumed that it will not be possible to distinguish the inputs of each party to the shared and frequently reconciled model. A revised BIM Protocol would be desirable, addressing the areas where clients are exposed by the present one. Multi-party forms of protocol are also likely to be favoured, to link all parties together for more effective data exchange and collaboration. This would naturally relate to a multi-party main contract. Asset performance following a ‘soft-landings’ handover should also feature in describing success and reward. Quite different business models for the supply of built environment are expected in the next decade and forms of procurement and contract must be ready for them.
Blog author: Richard Saxon CBE, JCT Chairman
Note: Blog posts are the views of the author(s) and do not necessarily represent the views of JCT.