Comment: David Mosey – Is it time to update the CIC BIM Protocol?

Professor David Mosey, of the Centre of Construction Law at King’s College London, previews new research on clients’ use of the CIC BIM Protocol and alternatives – and asks whether we should be considering a post-mandate update to the protocol.

Three years ago, publication of the CIC Protocol provided a valuable bridge between standard contract terms and some of the new contractual challenges created by BIM. But is it still providing the answers in a way that enables procurement models and contracts to support BIM in delivering improved value?

Over the last year a research team led by the King’s College London’s Centre of Construction Law has examined BIM projects led by clients such as Crossrail, UCLH and UBS to establish what procurement routes fit best with BIM and what contract terms make a difference. Among 40 interviewees only 12% mentioned using the CIC BIM Protocol, and yet all of them recognised the importance of creating procurement and contractual links to BIM.

For example, the UK government’s leading BIM Trial Projects, led by Ministry of Justice at Cookham Wood (pictured above) and more recently at North Wales Prison, do not use any BIM protocol at all and instead have enabled BIM through early contractor involvement under the PPC2000 contract form.

Their reported results include agreed savings (20% at Cookham Wood and 26% at North Wales Prison), most of which were attributable to Tier 2 specialist contractors working as part of an integrated design team with the main contractors, architects and engineers. BIM was the agreed medium through which this early collaborative working achieved significant results.

Similarly, the adoption of BIM by the Australian Department of Defence has followed guidance, provided by the Strategic Forum for the Australasian Building and Construction Industry, that BIM should be combined with a procurement model known as “Project Team Integration”. This includes a multi-party contract designed to enable early collaborative working with the whole supply chain, including facilities management professionals.

Not all BIM legal issues are resolved through the choice of procurement model, for example, intellectual property rights where the CIC BIM protocol created a consistent and balanced approach among a set of two party contracts. However, this needs to be viewed alongside the protocol’s various limitations on liability, which were intended to give designers the confidence to work through BIM but which may now be less attractive to clients.

This may be one reason for the JCT 2016 practice note recommending that, in the event of conflict, their contract terms should take precedence over any protocol.

As we consider the impact of the April 2016 public sector BIM mandate, and also the BIM+/Construction Manager survey of client concerns as to BIM, is it time to consider how the CIC BIM Protocol can be updated? For example, can we remove the disclaimer of liability for electronic data exchange, and the diluted duty to exercise only “reasonable endeavours” in delivering BIM models? And, in maximising the benefits of BIM, could a revised protocol provide guidance on links to recommended procurement models, including the importance of engaging with those who will manage and repair the completed project?

All of these issues are worth serious consideration, and are addressed in the draft King’s research report. They will also be discussed at our conference “Enabling BIM Through Procurement and Contracts – What you need to know in 2016” to be held on Friday 6 May, and conference contributions will feed into the final published report.

The conference fees are very low so as to encourage input from a wide variety of delegates, and if you are interested in attending please contact [email protected].

Is it time to consider how the CIC BIM Protocol can be updated? For example, can we remove the disclaimer of liability for electronic data exchange, and the diluted duty to exercise only ‘reasonable endeavours’ in delivering BIM models?– David Mosey, King’s College London

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