Blog Author: Mark Pantry – Fenwick Elliott
In May 2019, JCT introduced a new Practice Note, BIM and JCT Contracts. JCT says that the aim of the Practice is to further the understanding of BIM related legal and contractual issues and suggest ways of approaching such issues in a collaborative and constructive way. Mark Pantry explores the extent to which JCT have achieved this.
The construction industry continues to make progress with the implementation of digital technology in construction projects. It is, however, widely accepted that the construction sector significantly lags behind other sectors in capitalising on the benefits of digital technology.
The construction industry’s approach to digital technology has been dominated by Building Information Modelling (“BIM”) and the implementation of BIM on projects looks to be increasing year on year.[1] While this yearly increase may be true in relation to the technical implementation of BIM it does not appear to have been matched by the contractual application, with some building contracts not accurately reflecting the BIM activities being undertaken in practice. This perceived gap in understanding of the legal and contractual implications of BIM is the focus of the Joint Contract Tribunal’s (“JCT”) new Practice Note – BIM and JCT Contracts (the “Practice Note”).
JCT has previously published similar practice notes and supplements on the contractual integration of BIM into its contracts but the 2016 suite of contracts introduced standard (albeit optional) BIM drafting to coincide with the UK Government Construction Strategy of May 2011, which required a minimum level of BIM on all centrally procured public sector projects by 2016. Drafting of the Practice Note was provided by the team at the UK BIM Alliance.
While the Practice Note assumes a base level of understanding of BIM, it is intended to be a practical guide, using the JCT’s most popular contract, the JCT Design and Build Contract (“JCT DB”), as the basis for its discussion of the relevant clauses. However the guidance provided should be applicable to the other forms of JCT Contracts being used on a BIM-enabled Project.
The Practice Note is split into two parts. Part A is a detailed commentary on the provisions in the JCT DB that are, or could be, relevant where BIM is implemented on a project. The relevant clauses of the JCT DB which are discussed in Part A are provided as extracts in Appendix 3 to the Practice Note. Part B is a BIM Protocol checklist, suggesting a non-exhaustive list of main topics which may be covered by a BIM Protocol. A similar list of topics for the drafting of the Exchange Information Requirements at pre-tender stage is set out at Appendix 1 to the Practice Note.
In an area dominated by acronyms and definitions (the meaning of some having been changed following the introduction of BS EN ISO 19650), Appendix 2 to the Practice Note contains a helpful glossary of BIM terms.
The Practice Note’s commentary raises some interesting points on the provisions of the JCT DB which may be impacted by BIM being used on a project:
- BIM Protocol – the BIM Protocol must be specifically identified in the contract particulars; it does not automatically apply where a BIM Protocol is included in the contract documents without reference in the contract particulars. JCT does not publish a form of BIM Protocol and the parties must agree the form of BIM Protocol to be used on a project during the pre-contract stage. The chosen BIM Protocol should be reviewed to ensure that, from both a technical and contractual perspective, it does not contradict the terms of the contract or the other contract documents. The checklist at Part B of the Practice Note is a useful tool for reviewing a BIM Protocol for use on a project.
- Precedence of Contract Documents – the BIM Protocol is a “Contract Document” under the JCT DB; if there is any conflict between the BIM Protocol and the contractual terms of the JCT DB then the contractual terms prevail. This contradicts some model BIM Protocols, including the Construction Industry Council’s (“CIC”) BIM Protocol, 2nd edition, which states that the protocol will prevail. When using the CIC BIM Protocol with the JCT DB, the parties should consider which document, the BIM Protocol or the JCT DB, should prevail where there is a conflict and amend the documents accordingly.
- Design Submission Procedure – it is often overlooked that a BIM Protocol replaces the design submission procedure set out in Schedule 1 of the JCT DB. The parties should make sure that the BIM Protocol sets out agreed procedures and timings for the submission and approval of designs. Most contractors will be comfortable with the procedure set out in Schedule 1 of the JCT DB (the Employer marking information A, B or C) and some BIM Protocols use similar digital processes.
- Access to the common data environment – following the decision in Trant v Mott MacDonald,[2] the parties should consider who has control of the common data environment (“CDE”) and how access is monitored and facilitated. The parties should also consider in which circumstances access to the CDE could be restricted.
- Relevant Events and Relevant Matters – the Relevant Events and Relevant Matters in the JCT DB make no reference to BIM but the parties should consider which, if any, BIM-related events should entitle the Contractor to an extension of time and/or loss and expense. For example, if the BIM Protocol was amended by the Employer during a project, would the Contractor be entitled to additional time? Similarly, if unauthorised persons uploaded data to the CDE incorrectly, will the Contractor be entitled to recover its time and costs in rectifying the CDE?
- Practical completion and defects – the BIM Protocol should set out what is to be provided prior to practical completion of works. The Employer’s proposed use of the information should also be stated; if an Employer was intending to use the information to form an Asset Information Model (“AIM”), then the Employer’s specific requirements in this regard should be clearly detailed in the BIM Protocol.
- Changes – the parties should consider how Changes are instructed and whether the instruction of any Changes will affect the operation of the BIM Protocol.
- Insurance – contractors should review their professional indemnity insurance policy or speak with their insurance brokers to determine whether their policy covers the delivery of BIM under a project. If a contractor is hosting a CDE that is the target of a cyber attack, does it have sufficient insurance in place?
- Termination – the BIM Protocol should include sufficient detail on the procedures following termination of the contract. The consequences of termination may depend on the reason for the termination but it is likely that both parties will require some access to the CDE following the contract being terminated.
Conclusions
The increased use of BIM in construction projects is welcomed as part of the wider uptake in digital technology. With the technical and practical implementation of BIM increasing, the contractual position should not be forgotten and the parties to a contract should give sufficient consideration to the operation of BIM within the underlying contractual provisions.
With BIM and the JCT DB this is centred on the BIM Protocol, and the JCT’s Practice Note is a helpful starting point for parties who want their contract to adequately incorporate what they have agreed on BIM for a particular project.
Mark Pantry is an Associate at Fenwick Elliott, the UK’s largest specialist construction and energy law firm.
References
[1] https://www.building.co.uk/focus/bim-survey-2018-the-rise-and-rise-of-bim/5096188.article
[2] https://www.fenwickelliott.com/research-insight/annual-review/2017/uk-bim-trant-mott-macdonald