Chartered Institute of Building Website of the Chartered Institute of Building
CIOB RICS: Royal Institution of Chartered Surveyors Construction Excellence RIBA: Royal Institute of British Architects BIFM CIAT - The Chartered Institute  of Architectural Technologists Elecosoft® PENNINGTONS MANCHES ECA BIM TG SOLIBRI - A NEMETSCHEK COMPANY SES Engineering Services BIM Object Autodesk

Management

 

Mind the Gaps – The Contractual Approach to BIM

0 Comments

The UK government’s BIM mandate takes effect in only a few weeks, with BIM to become mandatory on centrally procured public sector projects from 4 April 2016.

The UK construction industry has made significant progress in relation to the use of BIM since the mandate was announced in 2011. While, from our experience, many clients are still getting up to speed with BIM, consultants and contractors are fully aware of the efficiency and improved information it can bring.

On projects where BIM is being used there is a tendency for contracts to “fall through the gaps”, particularly where the project team is using BIM but the client has not required this at the outset, or has simply said it just “wants BIM” and not defined what it means by this.

It is, however, important to ensure that contracts are consistent with the approach taken by the project team to ensure that their obligations, potential liability and entitlement to payment reflect the approach being taken.  Properly reflecting the use of BIM contractually can also provide a good background for the project team to collaborate.

In 2013, the BIM Task Group published the CIC Protocol, drafted by Beale & Company, which should be incorporated into a contract to reflect the use of BIM. The CIC Protocol should clearly set out the project team’s responsibilities for the production of models (Appendix 1, the Model Production and Delivery Table) and the procedures applicable to the use of BIM on the project (Appendix 2, Information Requirements).

The CIC BIM Protocol also creates a consistent framework for the project team to collaborate, as it should be incorporated into the contracts of all those responsible for the production or use of models.

The CIC Protocol is being used on Level 2 BIM projects at the moment. For the Protocol to be incorporated into a contract, the contract must include an “enabling clause” stating that this is the case (the guidance note to the CIC Protocol contains suggested wording for this).

Read related articles

BIM bytes: BIM and JCT contracts in practice

The CIC BIM Protocol – A three-part approach to BIM

BIM contracts are leaving liability gaps: A ticking time bomb?

The CIC BIM Protocol also creates a consistent framework for the project team to collaborate, as it should be incorporated into the contracts of all those responsible for the production or use of models.

The CIC Protocol is being used on Level 2 BIM projects at the moment. For the Protocol to be incorporated into a contract, the contract must include an “enabling clause” stating that this is the case (the guidance note to the CIC Protocol contains suggested wording for this).

However, often when the project team intend that the CIC Protocol will be used (or think that it is a contractual document) it is not incorporated into the contracts, so may not have contractual effect. For example, on a recent public sector project, the scope and works information referred to the CIC Protocol but the contract did not include an enabling clause. Similarly, on a private sector project, the Employer’s Information Requirements stated that the CIC Protocol would be used in all contracts, but it was not incorporated into the contract. Instead, the contract contained ambiguous references to BIM. 

Another example we are seeing of a “gap” between the project team’s approach to BIM and the contract is that the appendices to the CIC Protocol (the Model Production and Delivery Table and the Information Requirements, as mentioned above) will either not be completed or are stated “to be advised”.

The appendices are a key part of the CIC Protocol as they set out the obligations of the project team in relation to BIM (eg the models to be produced and the key procedures applicable on the project). Without these being completed and appended to a contract, the use of the CIC Protocol could have limited effect. The appendices in the published CIC Protocol are “pro formas”, which do not need to be followed prescriptively, as long as the key elements are set out. To assist the appendices being completed editable versions are available on the UK BIM Task Group website here

Although there have been no reported court cases to date regarding BIM, inconsistencies between the contractual documents and the approach “on the ground” in relation to BIM will increase the likelihood of a dispute arising. These are very much “teething problems” which by no means undermine the significant progress that has been made in the UK and will no doubt continue to be made after 4 April 2016.

Nevertheless, going forward, to reduce the risk of the contractual approach to BIM being overlooked it is important that project teams, commercial teams and legal advisers all consider this carefully before any contract is concluded to ensure the contractual approach reflects the approach to BIM on the project.

a.croft@beale-law.com @andrewiancroft, tel: 020 7469 0462

The appendices are a key part of the CIC Protocol as they set out the obligations of the project team in relation to BIM. Without these being completed and appended to a contract, the use of the CIC Protocol could have limited effect. – Andrew Croft, Beale & Co