This is a brief consideration of the present standard form contract position for BIM, considering the most common standard forms (JCT and NEC3), the contract protocols available, and the standards.
JCT Public Sector Supplement
The JCT’s Public Sector Supplement in September 2011 (updated in December 2011) includes, according to the JCT website, the “key features” of the Government Construction Strategy, including reference to an agreed BIM Protocol.
The Public Sector Supplement contains suggested modifications for JCT main and subcontracts, and could presumably be used for more than just public sector work. However, the Supplement does not contain detailed provisions relating to BIM. It refers to the inclusion of a BIM Protocol as a contract document, which will contain all the necessary BIM-specific terms. Although no sample Protocol was provided, the intention is now to use the CIC BIM Protocol (considered later in this article).
The Supplement is therefore by no means a complete code for the implementation of BIM in contracts. Not only is a comprehensive BIM Protocol required, setting out BIM procedures and duties, but consideration also needs to be given to the impact of BIM on the other terms within the JCT contract. For example, whether the design and checking duties and procedures within the main contract require amending so as to be sympathetic to the aims of BIM-enabled working, and consistent with the contents of the BIM Protocol.
NEC Guidelines April 2013: How to use BIM with NEC3 Contracts
The NEC expects BIM requirements to be incorporated through a combination of contract terms and Works Information. But the position described in the guidelines is arguably less clear-cut than for the JCT.
The guidelines say there will be a BIM Protocol to contain the technical aspects of BIM. This Protocol will form part of the Works Information, by referring to the relevant parts of the Protocol or repeating the relevant wording from the Protocol. It also suggests that changes to the parties’ rights and responsibilities, such as additional compensation events for failure to comply with the BIM Protocol, will be incorporated into the contract itself, for example by way of Z Clauses. The consequential impact of such changes needs to be considered by the parties to ensure they reflect the parties’ intentions, such as the impact on available compensation events.
In recognition of BIM’s need for collaborative working, the guidelines recommend the incorporation of Option X12, being the collaborative contract clause option, which parties should be already at least generally familiar with.
The guidelines endorse the CIC BIM Protocol, and its proposed modifications to NEC3 Contracts. Contradictorily, the guidelines also consider that the CIC Protocol may, in some instances, create additional employer’s risks whilst reducing the circumstances covered by the consultant’s indemnity. This may not be agreeable to some parties. It also acknowledges the risk of contradictory terms between the CIC BIM Protocol and the NEC3 Contracts themselves, such as the different definition for “Material”.
CIC BIM Protocol, March 2013
The CIC BIM Protocol was drafted with government support and is intended to be suitable for use in all construction contracts in BIM-enabled projects. It provides for the delivery of models at defined stages of the project by way of “data drops”, a term widely used by the government since its initial development of BIM-enabled processes and in the ongoing pilot construction projects.
There are both critics and supporters of the CIC Protocol. For example, one major criticism has been its provision that the copyright licence granted to the employer is revocable on non-payment of fees. The impact of revocation of copyright in a BIM project could be far greater than under a normal non-BIM project.
AEC (UK) BIM Protocol
The AEC Protocol follows the aims of the other Protocols, such as in setting out guidelines for collaborative working and processes and methodology relating to the models. However, clause 4.3 says “Legal Stuff – Not included in this release”. This Protocol would therefore need to be supplemented by additional terms dealing with the “Legal Stuff”, such as parties’ rights and responsibilities.
There are a few organisations that have published their in-house BIM Protocols, which are available to the public online, such as M&E consultancy Hoare Lea.
The BIM Task Group website pronounces that the purpose of PAS1192-2 is to support the achievement of Level 2 BIM by specifying requirements for this level, setting out the framework for collaborative working on BIM-enabled projects and providing specific guidance for the information management requirements associated with projects delivered using BIM. PAS1192-2 replaces its earlier sister standard, BS1192:2007.
This in turn is said to provide BIM information management specifications for the operational phase. This is intended to work in harmony with PAS1192-2, providing complementary standards for parties to implement.
This is still in draft. Its aim, apparently, is to complement the existing standards by providing a code of practice for fulfilling an employer’s information exchange requirements using COBie.
Again, this is still a draft document. It appears to be intended to further supplement the other standards with a product data element, providing a more complete package of standardisation.
The UK’s BIM Export Ambitions
To achieve the UK’s sometime expressed ambition to become a global leader in the exploitation of BIM, the contractual documents prepared and legal approaches being taken will need to be stress-tested internationally, to see if they work in the international arena.
In the meantime, the international construction industry will presumably become exposed to the UK BIM standard form documents and standards when working with the UK industry, and via their participation in the rising number of BIM-specific courses offered by UK organisations in other countries http://www.construction-manager.co.uk/news/uk-bim-expert2ise-hea4ds-aust4ralia/
The NEC expects BIM requirements to be incorporated through a combination of contract terms and Works Information. But the position described in the guidelines is arguably less clear-cut than for the JCT.– May Looi, Kennedys