Blog authors: Tom Pemberton and Andrew Croft – Beale & Company Solicitors LLP
Following the UK government’s well publicised plans to use Building Information Modelling (“BIM”) on all centrally procured public sector projects by April 2016 there has been a real increase in the use of BIM in both the private and public sector. In 2011, the JCT issued its Public Sector Supplement, including amendments facilitating the use of BIM. These amendments, and associated guidance issued by the JCT, were the earliest example of drafting addressing the use of BIM and published by a standard form issuing body. The time now seems ripe for the JCT to consider whether to issue an update to reflect current thinking on BIM best practice.
What is BIM?
BIM was defined by CPIC as the “digital representation of the physical and functional characteristics of a facility creating a shared knowledge resource for information about it, forming a reliable basis for decisions during its life cycle, from earliest conception to demolition”. BIM has an impact on more than just design. BIM plays a key role in the construction process and determines how information can be used to manage an asset following completion.
Whilst there have been no cases to date in the English courts involving BIM, disputes have arisen in the US, including a dispute in which BIM was used to design an MEP system. The design team did not inform the contractor that to fit the system through a ceiling void a specific installation sequence must be followed. Having completed 70% of the project the contractor could not install the system, and claimed its additional resulting costs from the client, who made a claim against the design team. This dispute, which was ultimately settled outside court, demonstrates that risks can arise when BIM is used.
To address these risks it is increasingly common for lengthy disclaimers to be included in BIM models so as to limit parties’ liability. Such disclaimers will limit the benefits gained by using BIM. If BIM is used it is therefore important that this is reflected in any construction contract so as to clarify the parties’ rights and obligations.
Many contracts do now prescribe the working arrangements and the rights, obligations and liabilities arising from the use of BIM. This is sometimes by way of bespoke contractual protocols. These are often based on the CIC Protocol (see below), and materially alter the contractual balance of risk and obligation as well as the position in relation to copyright. The use of BIM is also increasingly being acknowledged in bespoke contracts, albeit sometimes in a limited way, which does not clarify the parties’ obligations in relation to BIM. It is therefore a very sensible time for contract publishing bodies (such as the JCT) to guide the industry as to how to reflect BIM contractually.
CIC Protocol
One way of reflecting the use of BIM contractually is by using the CIC BIM Protocol (“the CIC Protocol”), which was drafted by Beale & Company. By way of a summary, the CIC Protocol:
- includes obligations on the members of the project team to produce models at specific stages, which will be set out in Appendix 1 (“the Model Production and Delivery Table”);
- requires those models to be produced and delivered in accordance with the processes and procedures in Appendix 2 (“the Information Requirements”);
- excludes liability for any corruption or unintended amendment to a Model after it is transmitted, unless it arises as a result of failing to comply with the Information Requirements;
identifies the extent to which Models can be used, which is linked to the level of detail specified for each Model in the Model Production and Delivery Table; and - provides for an Information Manager to be appointed to establish the processes and procedures in Information Requirements.
The Appendices in the CIC Protocol are key to defining the parties’ rights and obligations and require a reasonable level of detail to be included at an early stage. This reflects the need for a greater understanding at the outset as to how the project team will produce information and how it will be used so as to ensure that, amongst other things, the information provided at the end of a project can be used by the Employer in managing the asset.
If the CIC Protocol is used it should be specifically incorporated into the contract. The guidance note to the CIC Protocol includes simple exemplar wording for doing so.
The JCT Public Sector Supplement
The JCT was the first contract publishing body in the UK to refer to BIM in the 2011 Public Sector Supplement, which included amendments to reflect the increased adoption of BIM. Whilst the publication of the Public Sector Supplement was a positive development for the use of BIM on public sector projects, amendments have not been published by the JCT for use on private sector projects. Given that BIM is now used on a large number of projects in both the private and the public sectors, the JCT will no doubt be considering whether equivalent BIM provisions to those in the Public Sector Supplement should be included as an option in all the JCT forms.
What amendments does the Public Sector Supplement propose? The amendment to the JCT Design and Build Contract 2011 (“JCT D&B”) suggests that “any agreed BIM Protocol” is included in the definition of Contract Documents. However, the guidance note suggests a different approach, i.e. that the agreed BIM Protocol should be included within the Employer’s Requirements rather than as a separate Contract Document. The latter would have a significantly different effect, since pursuant to JCT D&B clause 1.3 nothing in the Employer’s Requirements will override or modify the Articles of Agreement or the Conditions of Contract.
However, if the CIC Protocol is adopted this potentially gives rise to a major discrepancy since the latter states that it takes precedence over the underlying Agreement in the event of any conflict. This is necessary in order to achieve consistency between the contracts of all those with responsibilities for the production and use of Models, to each of which the CIC Protocol must be appended. The Public Sector Supplement was published before the CIC Protocol and evidently did not anticipate that the contractual BIM Protocol would have priority over the underlying agreement. If a contractual BIM protocol (such as the CIC Protocol) is to be incorporated into a JCT Contract it would probably therefore be sensible to include drafting in the Conditions such as that suggested in the guidance to the CIC Protocol to make it clear that the agreed BIM Protocol has contractual effect, rather than following the suggestion in the guidance note.
Other Contractual Approaches to BIM
Other standard form contracts now include provisions or suggestions regarding the use of BIM. The ICC with Quantities Version published last year includes an obligation to comply with “any BIM Protocol” and the NEC3 April 2013 How to Use BIM: Guide suggests amendments to each of the NEC3 forms in respect of the use of BIM, including suggested additional compensation events. Another case in point is the CIOB Contract for use on Complex Projects which includes obligations on the Contractor in relation to BIM which are more onerous than those in the CIC Protocol. For example, the Contractor is responsible for the “suitability and integrity” of any selected software and information extracted from a Model, which differs from the position in the CIC Protocol (highlighted above).
The JCT will no doubt consider best practice from the other standard forms including those referred to above when it comes to review whether to issue amendments to the Public Sector Supplement, and the JCT forms generally, to reflect the use of BIM.
Conclusion
The use of BIM is becoming increasingly widespread and it is now common for this to be reflected in contractual provisions to underpin the parties’ responsibilities and obligations. The CIC Protocol is one way of doing so and if used the contract itself should be amended to incorporate the CIC Protocol clearly.
As noted above, a range of different approaches to incorporating BIM requirements has been adopted by various construction standard form issuing bodies. Whilst the JCT was perhaps the first body to do so by way of the 2011 Public Sector Supplement it may now be timely for the JCT to consider whether an update is necessary to reflect current best practice based on recent experience of using BIM.
For further information please contact Tom Pemberton (Email: t.pemberton@beale-law.com,Tel: 020 7469 0416) and Andrew Croft (Email: a.croft@beale-law.com, Tel: 020 7469 0412) at Beale & Company Solicitors LLP
Note: Blog posts are the views of the author(s) and do not necessarily reflect the views of JCT.