Julian Booth and Louise Forbes of law firm Olswang, consider the Construction Industry Council’s BIM protocol and how it might be amended for anyone commencing a BIM-led development…
As with any industry paradigm shift, the arrival and growing popularity of Building Information Modelling (BIM) in the construction industry has prompted careful consideration of the legal frameworks within which most construction projects sit. Although BIM is not an entirely new process (CAD engineers have often exchanged data throughout the design process), there are certain nuances within BIM (whether the project is operating at BIM Level 2, where independent 3D models are produced by each design team member, or at BIM Level 3, where the project is web-based, fully integrated and utilising 4D elements) which are best catered for under a BIM-influenced construction contract.
For example, ‘data drops’, whereby the project consultants upload design data into the model at prescribed points in the process, need to be executed at pre-agreed times, using specified file names, and any delay by an individual consultant will have a knock-on effect on the progress of both that individual consultant’s design element and also the overall design of the project. Such matters should be addressed within the construction contract in order to provide clarity in the event of a dispute over liability for any loss or delay resulting from failure by a consultant to execute a data drop correctly and in time.
The main suites of standard form contracts have begun to acknowledge that a BIM-led project will require some specific amendments in order to address these nuances, albeit some offer more guidance than others. Whilst the JCT’s Public Sector Supplement suggests that “simple integration of BIM protocols” into its contracts should suffice, other suites provide more detailed guidance. The RIBA Plan of Work 2013 suggests that the project sets out the BIM supporting processes within the “Technology Strategy” of the project (including how information will be provided and in what format); while the CIOB’s Complex Projects Contract (CPC) provides by default that the American Institute of Architects’ BIM protocol be inserted into the contract (although it should also be noted that the CPC remains unique in providing BIM provisions within its core terms). The NEC suite, however, gives guidance on incorporating the Construction Industry Council’s BIM protocol (CIC Protocol). Released in 2013, this and the AEC (UK) BIM Protocol, which is of a more technical nature, remain the only standard form BIM protocols produced for the UK construction market.
The UK Government’s BIM strategy, set out in the Cabinet Office publication “Government Construction Strategy” (published May 2011), is to bring in a phased process for BIM uptake for all supply chain members involved in public sector procurement, so that eventually full collaborative working (with its associated efficiencies/cost-savings in procurement delivery) will be achieved through BIM Level 3. Given that the government’s official target is for all government projects to be at least BIM Level 2 by 2016, it is perhaps surprising that, aside from the CIC Protocol, there are so few standard form protocols available to adapt or append to existing contractual documentation and that the standard form contracts are not more prescriptive about how BIM should be incorporated into the contract. Given this lacuna, it seems sensible to consider the CIC Protocol, including how it might be amended for anyone commencing a BIM-led development.
The CIC Protocol requires an Information Manager to form part of the professional team whose primary responsibilities include coordinating software and data drops (in short, helping to coordinate the practicalities of the BIM process). This is a crucial role and one which is increasingly becoming a ‘stand-alone’ function, distinct from any other lead consultant’s services.
The CIC Protocol also aims to synchronise intellectual property rights provisions with the practical requirements of the BIM process – another crucial provision in BIM, given how regularly in the BIM process consultants’ designs will be published and utilised.
The primary weakness in the CIC Protocol is that it does not offer adequate provisions for model production and data information criteria, essentially leaving these for the parties to complete. The scope for inclusion of such criteria is limited to the protocol’s appendices. Arguably, given the importance of the use of certain software and the provision of quality data, the CIC Protocol should cater for a more extensive set of BIM-related employer’s requirements. This weakness could be side-stepped if elements of the RIBA Plan of Work 2013’s guidance could also be incorporated (specifically those regarding introducing a ‘Technology Strategy’).
The CIC Protocol’s other perceived weakness is that there is a lack of clarity surrounding the measurement of competency in the BIM process. The standard of care of each designer must be that of a properly qualified and competent consultant using and creating output through BIM software: quite what this level of skill and care is remains unclear, although the CIC Protocol cites British Standard PAS 1192-2 as the standard for information sharing. Given that BIM practice is still maturing, there is no obvious way in which the duty of care could be worded to address this concern; however, a starting point should be that the contract itself is worded to identify BIM-specific services.
In the absence of any clear alternatives, the CIC Protocol provides a firm backbone around which to build a contract for a BIM-led project, and those entering into contracts for such projects (in particular the NEC and JCT suites) should consider that including the protocol may be the most straightforward and transparent way of incorporating BIM and any BIM issues into the contract. However, attention should be given to those areas in which the CIC Protocol is lacking, and further prescriptive wording should be included to ensure that there is greater clarity surrounding the obligations and liabilities of each party in respect of BIM. ■
Julian Booth
Associate
Louise Forbes
Trainee
Olswang LLP
Tel: +44 (0)20 7067 3000
louise.forbes@olswang.com
