Out-Law Analysis | 08 Nov 2018 | 11:26 am | 5 min. read
We are now just after the six-month anniversary of the publication by the Construction Industry Council (CIC) of the second edition of its BIM Protocol. At the time of its release, and in an environment where BIM Level 2 was mandated on all public sector projects and had been for a couple of years, we welcomed the second edition and the changes it brought. Not only did it seek to align itself with Publicly Available Standard PAS1192, which is seen by many as underpinning BIM Level 2, it also sought to address the common criticisms that were levied at the first edition.
However, the BIM-enabled projects that we are advising on have not been making use of the revised protocol. Instead, we have been seeing either bespoke 'protocols' or no protocols at all, with the BIM obligations instead forming part of the conditions of contract and technical documents in their own right.
It could be that this is a sign of an industry that has embraced BIM, and feels confident enough to make its own bespoke contractual arrangements for the delivery of BIM-enabled projects. However, if this confidence is not underpinned by a full and meaningful understanding of BIM and what should be included in the contract documents, the industry is running a substantial risk.
Protocols exist to ensure that there is clarity and consistency across the project on responsibilities, levels of detail, timing, software commonality and compatibility, security of information and ownership and usage of information. It is no coincidence that markets with a longer history of BIM-enabled projects than the UK, such as the US, also use BIM protocols in their BIM contractual arrangements - for example, the American Institute of Architects; Building Information Modelling Digital Data Exhibit, and Consensus DOC5 301 Building Information Modelling Addendum.
There is no better aid to ensuring that BIM contractual arrangements are adequate than using an industry-published protocol. The second edition of the CIC BIM Protocol introduced a number of substantive changes, which we have summarised below.
One of the biggest changes brought about by the second edition of the CIC Protocol addressed the issue of order of priority of the Protocol and the underlying terms and conditions of the contract and the other contract documents.
The first edition of the Protocol stated that it had priority over the other contractual documents - something which often resulted in contracting parties making bespoke amendments. The second edition addresses the concern by making it clear that the Protocol forms an integral part of the overall contract and any conflicts or inconsistencies between it and the other documents forming the contract should be resolved in accordance with the terms and conditions of that contract. However, the BIM obligations on the employer and the project team member (clauses 3 and appendices 1 and 2) are stated to prevail over any conflicting or inconsistent rights and obligations elsewhere in the contract.
Whilst this is a clearly sensible approach intended to bring clarity, the intention being not to cut across the terms and conditions of contract while not compromising the purpose of including the second edition of the CIC Protocol as a contract document, several other clauses are also stated as varying or having priority over the terms and conditions of the contract (see section on intellectual property rights, below). This may create confusion.
The second edition introduces a positive obligation on the project team manager to aid co-ordination of information, including a requirement to attend co-ordination meetings as required both by the information particulars and by the contract into which the protocol is incorporated. However, whether the contract outside of the protocol would include such requirements in practice remains to be seen.
Any ambiguities, conflicts and inconsistencies in the project information or information extracted from it should now be resolved with reference to the contractual terms for dealing with resolving such conflicts. This continues the theme of the second edition being seen as an integrated contract document and less of an uncomfortable bolt-on. The Protocol does, however, provide a fall-back procedure in the event that the provisions in the contract do not extend to cover the project information or information extracted from it.
What was considered by some to be the rather peculiar exclusion of liability by the project team member as to the integrity of any delivered electronic data was removed from the second edition of the CIC Protocol. Instead, the project team member does not warrant that any software it is using will be compatible with the software being used by any other project team member. The CIC stated that the reason for this change was because "interoperability is a key issue on any BIM project".
The second edition of the CIC Protocol introduces significant changes in relation to intellectual property rights, their ownership, licensing and sub-licensing.
Whilst the Protocol does contain intellectual property rights arrangements, it no longer asserts that they take precedence automatically over the existing, contractual intellectual property rights regime. Clause 6.1 of the Protocol actually reverses the previous position, dis-applying the Protocol's own clauses concerning intellectual property rights and their licencing and sub-licencing and applying and modifying, so far as is necessary, any existing intellectual property arrangements in the contract so that they apply to the Protocol and the material and any proprietary work in the material produced.
For a more detailed analysis, see our separate Out-Law article.
The Model Production and Delivery Table from the first edition has been replaced by the Responsibility Matrix, as a nod to developments in the Publicly Available Standards (PAS) since 2013.
However, this was not the only nod to PAS1192 in the second edition. Unlike in the first edition, which referred to 'models', the second edition of the Protocol refers to 'information' as part of its closer alignment to PAS1192. The second edition also introduced changes to align it with the security matters dealt with in PAS1192-5 and therefore deals with the role of the built asset security manager; security requirements; and, for certain projects, sensitive information.
As well as incorporating the second edition of the CIC Protocol into the contract (bearing in mind the comments above around priority), users must also ensure that it works properly. There are three appendices which must be completed, as well as a number of documents referred to in the protocol which must be drafted and agreed.
Appendix 1, or the 'responsibility matrix', is entirely blank in the second edition of the CIC Protocol. As noted above, this has replaced the model production and delivery table and, in doing so, is a move away from the prescriptive nature of the first edition. When completing the responsibility matrix, the compiler should remember to include in clear detail the information to be produced, the level of definition, who has what responsibility in relation to that information and when it must be produced in line with the project stages.
Appendix 2 sets out the information particulars. Unlike Appendix 1 this is a pro-forma that must be completed including project specific detail such as the information requirements, the BIM execution plan and the project procedures. Although a pro-forma, careful thought must go into its completion and the documents referenced must be produced and contain adequate detail.
Appendix 3 is new to the second edition and is for setting out the security requirements. This appendix may or may not be used if the security-minded provisions of the Protocol do not apply. If they do, the appendix should be used to specify any project information that is 'sensitive information' which should be "treated differently to other information". It must also set out the security requirements and the employer’s security policies, processes and procedures in relation to that sensitive information.
David Greenwood and Robert Parry are BIM specialists at Pinsent Masons, the law firm behind Out-Law.com.