Introduction

The Government’s Building Information Modelling (BIM) mandate provides an opportunity for the construction industry to work in a more collaborative and integrated way to achieve a better built asset. Contractual issues have the potential to hold back the adoption of BIM on projects. Architect Stefan Mordue looks at the changes required to the popular standard forms of contracts and the incorporation of the BIM Protocol for use on a Level 2 BIM project.

Background to the BIM Protocol

The UK Construction Clients Group Report 2011 stated that “little change is required in the fundamental building blocks of copyright law, contracts or insurance to facilitate working at Level 2 BIM maturity”. However, it did acknowledge that some essential investment is required in simple, standard protocols and service schedules to define BIM specific roles, ways of working and desired outputs.

The idea of a supplementary protocol outside of the contract means that a gradual approach to BIM adoption could be achieved without the need to redraft contracts.

BIM Protocol

The Construction Industry Council (CIC) BIM Protocol is a supplementary legal agreement that is incorporated into professional service appointments and construction contracts by way of a simple amendment. The specific text which incorporates the protocol into direct contracts is referred to as the Model Enabling Amendment. The amendment is undertaken by the contract administrator appointed by the client for setting up the contract. The CIC BIM Protocol guidance notes that the specific wording of the amendment should be considered on a contract-by-contract basis.

Essentially, it is a set of add-on contract clauses. The intention of the protocol is to promote the ethos of BIM and collaborative working, by placing an obligation on parties to provide and share information at defined stages of a project.

The protocol should be initially appended to the contracts of the design team, prior to the contractor being appointed if following a design and build procurement path.

Once appointed, the building contract should make the contractor responsible for providing models and should also include the protocol. The CIC BIM Protocol guidance suggests that if consultants are to be novated (or their contractual rights and obligations are transferred), then the protocol will allocate the responsibility between members of the design team.

When members of the design team are appointed, the procurement contracts manager appends the BIM Protocol to the building contract. The protocol guidance also recommends that the project team members arrange for the protocol to be incorporated into subcontracts, which concern the use, production or delivery of models to the extent required to ensure that the project team members complies with the protocol. By including the protocol in subcontracts, it ensures that subcontractors are subject to clause 6, which covers copyright and licence to use information forming the model.

The CIC BIM Protocol focuses on the project as it evolves, and Level 2 BIM “collaborative BIM” rather than Level 3 “integrated BIM”.

In Level 2, information models are “federated” together in a Common Data Environment and, therefore, it remains clear who the originating author of that information is.

Level 3 “integrated BIM” (where all parties are working on a single model in the cloud) will blur the boundary between the levels.

How does it work?

The protocol covers aspects such as the licensing of models and the permitted purpose of the information. Rather than state a specific use for each model, the general concept “Permitted Purpose” is used to define the licensed use of the models (see section 6 of the protocol). It also covers liability including corruption of data and content by making it clear that the Project Team Member gives no warranty to the integrity of any electronic data if delivered in accordance with the protocol (see section 5 of the protocol).

The protocol covers how information is to be produced, by whom and when. The Levels of Detail (LOD) and the Model Production and Delivery Table outlined in Appendix 1 specify what LOD each information model is to contain, which party is to deliver it and by what stage.

“Information Requirements” outlined in Appendix 2 sets out how information is to be produced, delivered and used within the project.

The protocol mandates that the employer appoints a new role “Information Manager” that will undertake the “information management role” (not to be confused with a BIM Co-ordinator). This role could be carried out by the design lead, project lead, consultant or contractor at different stages during the project, for example, or the employer may choose a standalone information manager. It has no design responsibility. The CIC BIM Protocol, Outline Scope of Services for the Role of Information Management is available from the CIC website.

Which contract?

The Construction Strategy 2011 announced the Government’s intention to increase efficiency and eliminate waste by moving towards using only standard forms of contract with minimal amendments. The strategy recommended the use of:

  • New Engineering Contract (NEC3), The Joint Contracts Tribunal (JCT) Constructing Excellence and Association of Consultant Architects (ACA) Project Partnering Contracts (PPC) 2000, together with three models as the most appropriate models for a collaborative process that would also allow early contractor involvement.

It further recommended three procurement models, which included, Cost Led Procurement, Integrated Project Insurance and Two-Stage Open Book.

The Government has produced a number of guidance documents on the new models of construction procurement, which are based on the evidence and feedback on use on the Government’s trial projects.

A report by Kings College London, Enabling BIM Through Procurement and Contracts, suggests that just looking for a mention of BIM in a contract is not the most effective way in evaluating a contracts suitability for a BIM project. Rather consideration should be given to how the contract deals with key issues that are affected by BIM, such as clash detection and mutual agreement of intellectual property rights.

BIM requires collaboration and corresponding consultant appointments and subcontractors that cover the appointment of the whole team and not just that of the main contractor. The report highlights the International Federation of Consulting Engineers (FIDIC), JCT 2011, NEC3 and PPC2000 as standard forms of contracts that cover the appointment of the whole team as outlined below.

NEC3

In 2013, NEC3 published its guide, How to Use BIM with NEC3 Contracts. The document suggests that BIM raises issues of rights and liabilities of the various parties involved and that the liability relating to each part are different from contracts that do not use a BIM process. It gives guidance on incorporating BIM Protocols into the contract as well as specific guidance on using the CIC Protocol within a NEC3 contract. The document suggests additional clauses that should be provided when using BIM which should be included as additional conditions of the contract under Option Z.

The guide also suggests the inclusion of additional compensation events, to deal with any eventuality where the consultant or contractor was unable to provide the Model, due to events outside of their control, and also if there was a situation whereby the employer was obliged to revoke the sublicence of information provided to consultants or contractor that was provided by others.

JCT

The JCT Public Sector Supplement: Fair Payment, Transparency and Building Information Modelling makes reference to BIM, and includes amendments to reflect BIM adoption. However, amendments for use on private sector projects have yet to be published. The supplement covers a number of the JCT main contracts and subcontracts and gives guidance on including the BIM Protocol into either employers’ requirements or other contract documents.

PPC2000

PPC2000 was chosen as the contract by the Ministry of Justice to support the BIM enabled Cookham Wood Trial Project, in combination with a Two-stage Open Book procurement model. The PPC2000 Standard Form of Contract for Project Partnering (Amended 2013) makes specific reference to BIM, by setting out amended clauses that are relevant to BIM within Appendix 10.

FIDIC

The FIDIC standard form of contract makes no reference to BIM provisions within the contract terms. The contract does not state if an additional BIM Protocol is required, and makes no provisions for the key aspects of BIM, such as provisions for clash detection, collaborative working, early contractor involvement or agreed mutual deadlines for specific activities.

Chartered Institute of Building (CIOB) Contract for use on Complex Projects

The CIOB Complex Projects 2013 contract is the first standard form of contract that provides for BIM clauses within its provisions and appendices. It allows for a variety of contract documents including an information model and makes provisions for the use of a Common Data Environment and allows for the selection from a number of BIM Protocols. This was revised, renamed and reissued as the Time and Cost Management Contract in 2016 to more clearly reflect the core strengths of the contract.

The BIM Task Group, the industry working group set up to help support and deliver the objectives of the Government Construction Strategy and BIM Level 2 adoption have provided a suite of BIM project documents that have been designed to be used as a suite and relate closely to one another. These are available from www.bim-level2.org.

The Task Group notes that:

The Employers Information Requirements (EIR) is the source of most information required to compile the BIM Protocol. The BIM Protocol requires the employer to appoint an Information Manager and also encourages the adoption of a Common Data Environment (CDE) and other aspects of PAS 1192:2 (which is the standard for information exchange to meet BIM maturity Level 2).

Concluding points

Although to support Level 2 BIM little change is required to standard forms of contracts, BIM is starting to be referenced and adopted within contracts. It is clear that as the construction industry moves from Level 2 to Level 3 BIM, a new contractual landscape will be required. Digital Built Britain, the strategic plan for Level 3 was published in February 2015. Aside from the development of open data standards and the creation of a cultural environment which is open to collaborative ways of working, the plan includes the establishment of a new contractual framework for projects that have been procured with BIM. It is envisaged that this framework will ensure consistency, avoid confusion and encourage open, collaborative working.

For the time being, however, existing contracts can be used with minimal amendments to help the construction industry move towards Level 2 BIM.

Last reviewed 13 September 2016