Where does BIM leave JCT and NEC3 contracts?

22 May 2015 | By Adam Golden

The BIM2050 Group’s Adam Golden ICIOB ICES, a legal executive in Costain’s in-house legal team, on the current menu of choices for BIM contracts – and what the future might bring.

It will come as no surprise that the most popular standard forms of contract in the UK are the Joint Contracts Tribunal (JCT) and NEC Engineering and Construction Contract (NEC3) suite of contracts. But what might come as a surprise to some is that these standard forms have failed to introduce comprehensive BIM contractual terms, required to meet the new needs of parties’ relationships within a BIM project.

The Government Construction Strategy, published in 2011, announced the government’s intention to require collaborative 3D BIM (with all project and asset information, documentation and data being electronic) on its projects by 2016. In response, the JCT published the Public Sector Supplement. But despite the importance given to BIM, the Public Sector Supplement does not address BIM in the detailed manner it deserves. The only real mention of BIM is a simple reference to the inclusion of a BIM protocol as a contract document.

As with JCT, the NEC also relies on a comprehensive BIM Protocol to cover all of the pertinent BIM issues. Both contract suites make very few changes to their wording to reflect any implications resulting from BIM. It could be argued that rather than facing the challenge directly, JCT and NEC3 have circumvented the subject of the impact BIM has on contracts.

The question is, are BIM protocols an acceptable compromise? The word compromise perhaps reveals this author’s views. The CIC BIM Protocol, developed with government backing, is an attempt to create a protocol that could be used widely across the industry, thereby addressing JCT’s and NEC3’s requirement for a standard form protocol. The CIC Protocol does not, however, provide a complete BIM contract document, and is not without detractors. It also has insufficient detail in certain aspects such as the failure to address collaborative information sharing in the anticipated BIM common data environment, yet the sharing of information is a fundamental aspect of BIM implementation.

The BIM protocol currently acts to weave the use of BIM software into existing contracts such as JCT and NEC and the sandbag of a BIM protocol appears to be holding back the flood water at present. However, with movement toward BIM Level 3 it is inevitable that the requirement for major alterations or indeed a new BIM-friendly suite of contracts becomes more pressing.

Without these changes there will be a real risk of BIM’s development being hindered. Level 3 BIM will undoubtedly raise significant legal, contractual and insurance issues, including intellectual property rights, multiple relationship frameworks, conflict prioritisation, the priority of contract documents and design liability, thus also professional indemnity insurance issues.

It will be critical to carefully consider and draft the terms of engagement in a way that reflects the collaborative nature of BIM and to ensure that the project team’s responsibilities, duties and services are appropriately aligned. The ability to view the implications to programme of a proposed change both retrospectively and, more importantly, as a projection will be critical in avoiding disputes. The linked resource, cost and productivity data within BIM models will evolve in line with the design alterations and this will allow a snapshot of the BIM model to be recorded.

Therefore, if there is a dispute at a later stage it is conceivable that you could rewind the BIM model to the point of alteration and the source of the problem could be easily identified.

It is clear that BIM’s potential regarding dispute avoidance and resolution is vast and it is hoped that the introduction of BIM will result in a less adversarial approach to contractual relationships and also that the collaboration brought to the industry through the use of BIM may bring the change that is required for productive and interconnected relationships.

The positive news is that the government does appear to be aware of the contractual changes required for successful BIM integration. Digital Built Britain was released on 26 February 2015 and it has a range of admirable long-term ambitions, including the creation of a new suite of contracts for BIM projects to allow for more integrated project teams which will be essential for Level 3 to succeed.

BIM is widely acknowledged to be the future of collaborative construction. However, if contractual implications are not properly addressed the potential for dispute is great. As regularly occurs with innovation, the legal and contractual framework development has lagged behind technological advances and work is needed to bring these frameworks up to date.

Both contract suites make very few changes to their wording to reflect any implications resulting from BIM. It could be argued that rather than facing the challenge directly, JCT and NEC3 have circumvented the subject of the impact BIM has on contracts.– Adam Golden, Costain