David McNeice from Quigg Golden looks at the brave new world of the NEC4 and its X10 option – the information modelling clause.
In October this year I had the privilege of chairing the Digital Procurement Workshop for the Institution of Civil Engineers at One Great George Street. It was a fantastic event, and provided a great insight into how digital technology and procurement should be utilised.
One of the main criticisms raised at the workshop was the lack of a strong industry or public-sector voice championing the use of digital technology on a wholesale basis.
My previous article on BIM and procurement makes no secret that in my opinion, fault, in the first instance (but not primarily) rests with the public sector for not getting behind the digital revolution and positively incentivising the use of digital technology the way it should. My two cents on this point is to positively incentivise its use on all major projects, and punish, by reducing funding, when and where it is appropriate to do so.
The NEC3 suite of contracts dealt with BIM in the form of a separate “how to” guide. This, in turn, made it quite difficult to incorporate provisions regarding BIM into the contract. Prior to its release there was a real fear that the NEC4 would follow the JCT 2016 and effectively say something akin to: “It’s BIM, you sort it out.”
Thankfully this hasn’t been the case and the NEC4 sees the inclusion of a new secondary option which specifically deals with information modelling – Option X10. The decision to include this new secondary clause has widely been regarded as a positive move towards encouraging the development, use and general understanding of BIM within the industry.
Yet despite the positives of its inclusion, there remain some criticisms of the new “BIM” clause.
First, the language and terminology used is not what we are used to. Comparing PAS 1192 and the CIC BIM Protocol, simple phraseology has changed. What was the reasoning behind this? The short answer seems to be change for change’s sake, which seems like quite an odd approach to take.
There also remain obvious ownership issues which clause X10 has failed to properly address. This issue is likely to become most apparent in both the ECS and PCS forms of contract whereby it does not become entirely apparent who is ultimately responsible for ensuring that BIM is properly utilised on the project.
I have first-hand experience with this, relating to a number of live contentious issues surrounding this point on ownership.
The final gripe that I have with X10 clause is the potential confusion created by the wording of its liability provisions. Under this clause the client is liable for any fault or error in the information model (other than a defect in the project information).
The client is also responsible for any faults in the information provided by information providers other than the contractor. Yet at the same time, the contractor is not liable for a fault or error in the project information unless “it failed to provide the project information using the skill and care normally used by professionals providing information similar to the project information”.
This begs the question of who assumes responsibility for information provided skilfully and carefully by the contractor which later turns out to contain a fault?
The answer to this question is not entirely clear and is something that the drafters should have addressed.
This article is not meant as a criticism of X10. The mere existence of any such clause constitutes a significant step in the right direction in respect of both the industry’s use and its general understanding of what BIM is and how it should be used.
But with that being said it still remains clear that standard forms of contract, including NEC4, have some way to go yet before they fully incorporate and utilise the use of BIM.
Perhaps the perceived low level of importance attributed to BIM in NEC4 is therefore not necessarily the fault of the drafters but rather a clear indication of the entire industry’s failings in respect of both its understanding and utilisation of BIM.
Ultimately, it is for the industry to catch up with our BIM requirements, and the drafters had to ensure that they left enough space for evolution, until such time as we as an industry understand the edges of BIM.
David McNiece is an associate at Quigg Golden Solicitors
The decision to include this new secondary clause has widely been regarded as a positive move towards encouraging the development, use and general understanding of BIM within the industry. – David McNeice