So what has been Changed by BIM?

Key Points

Before we look at the terms and conditions of standard forms, the place to start is in the scope of a contractor’s brief or a consultant’s schedule of services. The following key points should be checked:

• Does the contract contain a clear set of obligations as to how the consultant or contractor will be expected to implement BIM, including for example whether this will start with the project procurement process and continue into post-completion operation?
• Are there clear statements of the consultants or contractor’s promised BIM experience and expertise?
• Is it made clear what effect the use of BIM will have on the consultant’s or contractor’s specific duties in respect of design, costing, programming, project management and construction?
• Do all parties understand who will be BIM Information Manager, what duties this role will comprise and how these duties will interface with those of the design lead and the project manager so as to avoid gaps or duplications?¹⁶

Standard Forms

As regards terms and conditions relating to BIM, the standard form building contracts, consultant appointments and related guidance have so far used a light touch. This reflects the fact that BIM does not necessarily change how standard forms allocate risk and liability or how they deal with the project processes.

Some standard form building contracts expressly mention BIM, showing that the relevant drafting body has taken BIM into account. Examples are the JCT ‘Public Sector Supplement’,¹⁷ PPC2000 ‘Appendix 10’,¹⁸ and several clauses in the CIoB ‘Complex Projects Form’.¹⁹ Some standard forms mention their approach to BIM only in guidance documents, for example ‘How to use BIM with NEC3 Contracts’.²⁰ Meanwhile, certain standard form building contracts such as FIDIC are silent on BIM, which leaves uncertainty for the user as to whether BIM has yet been taken into account by the drafting bodies. Most standard form consultant appointments are also silent on BIM, although some refer in their guidance to the ‘CIC BIM Protocol’ described below.

However, to look for a mention of BIM in a contract is not the most effective way of determining a contract’s suitability to support the adoption of BIM in practice. Instead, it is better to look at how the contract deals with the key issues affected by BIM. These issues are examined below.

It is also important to look at whether there is consistency on these issues as between the building contract, all consultant appointments and also any sub-contracts and supply agreements that govern a design contribution. For example, there are complete and consistent sets of NEC3 and PPC2000 contract forms, but JCT offers no consultant appointment except for public sector projects²¹ and in those cases it will be necessary to align all other consultant forms with the JCT treatment of BIM. One way of ensuring consistency in the contractual treatment of BIM was the publication in 2013 of the ‘CIC BIM Protocol’, and this is what we will examine next.

Licensing of Models

The provisions and guidance of the CIC BIM Protocol propose a reasonably balanced approach to the licensing of BIM models, including:

• Grant of a non-exclusive licence for the client to transmit, copy and use models for the agreed project-related purposes for which they were prepared (Clause 6.3).
• The right for the client to grant equivalent sub-licences and for team members to grant equivalent sub-sub-licences (Clauses 6.3, 6.6, 6.7).
• Exclusion of the right to amend models except for agreed purposes (Clause 6.5.1) and exclusion of the right to reproduce models for the purpose of project extensions (Clause 6.5.2).
• Mutual obligations on the client and project team members to procure licences as required to meet their agreed licence obligations under the protocol (Clauses 6.9, 6.10).

Limits of Liability

The protocol also includes the following limits on a project team member’s liability:

• No warranty as to the integrity of electronic data transmission, and no liability for corruption or alteration occurring after transmission (Clause 5).
• Cross-reference to support any right to revoke or suspend a licence to use models in the event of non-payment (Clause 6.4).
• No liability for the modification, amendment, transmission, copying or use of BIM models other than for agreed purposes (Clause 7).

Appendices

The Appendices to the CIC BIM Protocol comprise important practical documents, namely:

• Appendix 1: The ‘Model Production and Delivery Table’, which sets out the ‘Levels of Detail’ to be achieved in respect of each BIM model by each project team member at each stage.
• Appendix 2: Details of the BIM Information Manager’s role, and of the ‘Employer’s Information Requirements’ regarding the “Common Data Environment” created through BIM, including agreed software and formats plus cross-reference to the BIM ‘Execution Plan’ and related project procedures.

These documents need to be integrated with the consultant services schedules, the contractor’s brief and the project programme.

Duty of Care

The obligation on project team members to produce models in accordance with agreed Levels of Detail specified in the Model Production and Delivery Table is limited to ‘reasonable endeavours’, a lower duty of care than the accepted standard of ‘reasonable skill and care’ (Clause 4). In addition, a team member’s compliance with the Model Production and Delivery Table and the Information Requirements is stated to be ‘subject to events outside its reasonable control’ (Clause 4), a generic exception which overrides the detailed provisions for extension of time contained in all standard form building contracts.

Client Concerns

Some of the above provisions dilute what a client would expect as commercial norms, and anyone recommending the CIC BIM Protocol should make very clear its potential impact on client rights.

The absolute obligation on the client to secure protocols in substantially the same form from all other project team members, and to update the Information Requirements and the Model Production and Delivery Table (Clause 3), should also be made clear to the client before the CIC BIM Protocol is adopted.

Contractual Status of Model Production and Delivery Table

BIM provides clarity as to the Level of Detail in each model at each stage of a project, and requires that consultant appointments and building contracts reflect that clarity in deadlines setting out the agreed sequence of model production, delivery, comment and approval. There should be a contractual commitment by all team members:

• To produce and deliver their BIM models to the agreed Level of Detail by agreed deadlines at each stage
• To provide comments and approvals by agreed deadlines at each stage
• To specify matters that may prevent agreed deadlines being met.

Certain standard form building contracts provide documents that could be linked to or embody the Model Production and Delivery Table, for example:

• The JCT Information Release Schedule,²² although this only commits the main contractor under the JCT 20111 building contracts, with no corresponding commitment in the JCT Consultant Appointment (Public Sector).
• The NEC Key Dates Schedule,²³ which appears both in the NEC Building Contract and in the NEC Professional Services Contract.
• The PPC2000 Partnering Timetable and Project Timetable²⁴ which, under the PPC multi-party structure, mutually commits the main contractor and all consultants to agreed deadlines.

Mechanisms to achieve Collaboration and Consensus

BIM is often described as collaborative, and clearly creates significant opportunities for team members to work collaboratively, but without additional discussions this may go no further than agreed arrangements for sharing BIM data and expecting timely feedback. These can be dealt with in the agreement of deadlines for model production, delivery, comment and approval as described in above.

If collaboration through BIM is intended also to describe the culture of the project and the way that team members assist each other, then this needs clarification in the contract terms so that there is no room for misunderstanding or opting out. For example, a forum for clash detection, early warning and risk management is described in the next section. Other contract provisions that support a collaborative culture include:

• Direct mutual agreement to act in ‘good faith’ or otherwise in a collaborative manner
• Direct mutual commitment to agreed objectives.

These appear, for example, in the following standard forms:

• In the JCT forms, a ‘good faith’ provision appears in the optional Appendix 8 to the 2011 building contracts – but there is no equivalent commitment in the JCT Consultant Agreement (Public Sector).
• In the JCT forms, mutual direct commitments to agreed objectives appear only in the ‘JCT Constructing Excellence Project Agreement’.
• In NEC3, a ‘good faith’ provision is given in Clause 10.1 of all building contracts and the consultant appointment form.
• In NEC3, no mutual direct commitments are given, as these are expressly excluded in NEC3 Partnering Option X12.
• In PPC2000, a ‘good faith’ provision is included in Clause 1.3 of the PPC2000 Partnering Terms.
• In PPC2000, the multi-party structure creates mutual direct commitments between the client, all consultants, the main contractor and key sub-contractors.

Clash Detection, Early Warning and Risk Management

BIM enables design inconsistencies to be revealed through clash detection, but for BIM to enable collaborative working, there needs to be a contractual mechanism establishing what team members do when clashes are detected and notified. This should comprise a forum tasked with seeking a constructive solution. Although the JCT forms do not provide for such forums, both NEC Option X 12²⁵ and PPC2000²⁶ provide for such ‘Core Groups.’

Intellectual Property Licences

Intellectual property rights should not need different protections by virtue of appearing in BIM models. For example, existing statutory copyright protection covers graphic and non-graphic design work plus ‘computer programmes’ and ‘preparatory design material for a computer programmes’, and arguably does not need clarification to extend to BIM models.²⁷

However, it is important to spell out that athough the CIC Protocol offers a balanced approach to the licensing of BIM models, it creates an additional burden on the client by making it the contractual gatekeeper of all model licences, leaving project team members without direct remedies in the event of breach of each other’s licences. The multi-party structure of the PPC2000 contract solves these problems by creating direct licences and mutual indemnities between all the project team members who sign it.

Liability for Corruption of Data

It is worrying that the CIC BIM Protocol excludes any warranty as to the integrity of electronic data delivered, and also excludes liability in respect of any corruption or amendment of data after transmission. This places all risks with the client, and does not, for example, require project team members to apportion any liability to the BIM software providers. By contrast, there are no equivalent exclusions in the JCT, NEC3 or PPC2000 standard form building contracts.

Links between Design, Construction and Operation

The benefits of BIM should extend long beyond completion of a capital project, if it is used to create accessible data that supports interactive operation and maintenance systems in place of traditional ‘O and M’ manuals. For example, the UK Government’s ‘Soft landings’ initiative includes trials of new project team contractual commitments, supported by BIM, which extend beyond the typical defects liability period.

Standard contract forms can link the capital and operational phases of a project, and the JCT, NEC and PPC contract suites all offer compatible ‘term’ contract forms. However, the development of contract models that help to fulfil the operational potential of BIM data also depends on the adoption of procurement models which invite the market to submit whole-life asset management proposals.

Closer integration of design, construction and operation phases in the life of a built asset forms part of the UK Government’s approach to BIM level 3. For example, ‘Digital Built Britain’ includes proposals for the ‘Development of BIM and asset data enabled FM and AM Contracts’²⁸ (see Chapter 4).

Savings and Improved Value achieved using BIM

The Cookham Wood Trial Project case study, which was independently audited, attributed significant improved value to ‘Two Stage Open Book’ and BIM. These included 20 per cent agreed savings, namely a cost of £2,332 per square metre against a baseline benchmark of £2,910 per square metre. For example, Interserve and its tier 2 specialist subcontractor SCC submitted a ‘precast volumetric cell’ proposal in response to the MoJ brief; this was developed through BIM by the wider design team and led to a time saving of six weeks and a saving in overheads of £85,000.³³

Other innovations driven by ‘Two Stage Open Book’ and BIM included:

• The use of solid precast floor slabs in place of pre-stressed floor slabs, resulting in a time saving of 12 days.
• The creation of ‘indestructible’ lighting in the education block through a bespoke solution proposed by EMCOR that also created a significant cost saving.
• Development by Arup and EMCOR of service ducts and cell risers that could be serviced more quickly and reliably by repair and maintenance engineers.³⁴

BIM Execution Plan and Core Group

Interserve prepared a BIM Execution Plan linked to a series of agreed deadlines in relation to the preconstruction phase of the project.³⁵ By this means, specified Construction Operations Building Information Exchange (COBie) data drops and related activities were supported by clear contractual obligations, including peer group pressure under the governance of named individuals comprising the ‘Core Group’. Core Group members met whenever required to approve design development proposals and to resolve questions and problems arising from clash detection, in each case deciding on courses of action by unanimous agreement of all members present.³⁶ This group worked alongside the design team, who were tasked with the development, coordination and exchange of information through the BIM models.

Mutual Reliance and Clash Detection

Each team member agreed to be responsible for errors, omissions and discrepancies in the BIM models it prepared or contributed to, ‘except to the extent of its reliance (if stated in such Partnering Documents) on any contribution or information provided by any one or more other Partnering Team members’.³⁷ As the sequence and nature of each contribution was spelled out, each team member was contractually entitled to rely on all earlier designs, and was made aware of which partners would rely on the completeness, accuracy and timeliness of that member’s contributions.

The team members agreed to warn each other ‘of any error, omission or discrepancy of which they become aware and (within the scope of their agreed roles, expertise and responsibilities) to put forward proposals to resolve any such error, omission or discrepancy fairly and constructively within the Partnering Team without adversely affecting the agreed cost or time for completion or quality of the project’.³⁸ This clause underpinned the commitment of all parties to BIM clash detection and to the notification of pragmatic solutions. It helped to establish that no team member would, by notifying a warning of clash detection and a proposal to resolve it, be charged with any additional responsibilities beyond those already within its agreed contractual role and expertise.

Intellectual Property Licences

Under the multi-party structure, a set of mutual intellectual property licences were directly entered into between all team members ‘for any purpose relating to the completion of the Project and (only in regard to the Client) the Operation of the Project’.³⁹ As regards liability arising from the licensing of intellectual property rights, the liability of team members was excluded ‘for the use of any design or document that it prepares for any purpose other than that for which it was agreed to be prepared as stated in, or reasonably inferred from, the Partnering Documents’.⁴⁰