Out-Law Guide | 01 Mar 2013 | 3:40 pm | 8 min. read
The Construction Industry Council (CIC) publishes a Protocol which the industry body hopes will make it easier for construction firms to use building information modelling (BIM).
BIM is the use of digital modelling to improve the design, construction and operation of the built environment to enable the client and supply chain to realise a range of benefits such as the predictability of costs and programme management during construction and thermal efficiency projections during post-occupancy. For more detail see our Out-Law guide to BIM.
The Government has mandated the use of BIM for all public sector construction projects by 2016. The Protocol is part of the CIC’s response to the UK Government’s BIM Strategy. It has been prepared for use with UK construction contracts and is designed to support Level 2 BIM, in line with the Government’s requirement to use at least Level 2 BIM on all public projects by 2016.
Levels of sophistication of usage of BIM are categorised in levels 1 to 3. The CIC Protocol has been design for use with Level 2 BIM. This may disappoint some, particularly those looking at more advanced stages of BIM, but the lock into Level 2 BIM was deliberate and necessary to adhere to the Government's requirements and to promote widespread BIM adoption throughout the industry.
The CIC's aim in producing the Protocol is to overcome any inertia in the uptake of BIM, particularly from those outside the major infrastructure sector. BIM adoption will suffer if there is a lack of industry standard frameworks for BIM implementation and the management of related risks. The CIC's offering is a framework to accelerate BIM uptake and make it the norm in the UK construction industry. Like anything designed for general application, users will have to scrutinise it to ensure it is in tune with the unique features of the relevant project.
Bilateral contracting relationships are preserved
The Protocol is intended to be incorporated as a contract document. Crucially, it is intended to take precedence over other documents for all BIM-related provisions. The Protocol will slot into exiting two-party contracting scenarios. It assumes the team of consultants is employer appointed. When those consultants are novated in a design and build context, particular care must be taken to ensure BIM obligations on the main contractor and the novated design team are reconfigured to reflect the changed relationships.
The guidance notes to the Protocol contain a model 'enabling clause' which can be added into the relevant contract terms and conditions to properly incorporate the Protocol as part of the contract. This clause provides for the parties to:
Inevitably, the wording and terminology may need to be adapted to conform with the particular form of contract being used, but these should be limited and will be relatively straightforward.
Consistency and collaboration
The traditional bilateral nature of the Protocol means that no direct contractual relationships are created between consultants on the same tier ('horizontal co-operation'). Working in BIM requires a greater level of horizontal co-operation and dependencies than might otherwise have been required in non-BIM environments. However, industry consensus is that for Level 2 BIM, current bilateral relationships are serviceable, if not ideal.
This means that parties will have to rely on their employer to enforce rights against those with whom there is no direct contractual relationship. This is made possible by the Protocol obliging the employer to ensure the Protocol is incorporated into all "Project Agreements" (clause 3.1). In that sense it is no different from the NEC X12 Partnering Option, so the concept should not cause any undue concern.
The base obligations are for the Project Team Member to produce Specified Models to the Levels of Detail provided in the Delivery Table. The Appendices provide a simple pro-forma in which to define the Levels of Detail and the type of modelling that is required at each stage of the design and construction process. The Protocol assumes, however, that the Appendices will be developed in further detail by those working in BIM to provide a meaningful base-line of obligations. This will require employers to access in-house or hired BIM expertise to identify in detail the level of BIM modelling their project will require.
As with any standard document, it will be critical that the project specific information to be included in the Appendices, such as the Levels of Detail, are properly addressed and clearly defined. A model may not benefit from the provisions of the Protocol if it is not clearly defined in the Appendices.
Skill and care
The Protocol requires models to be prepared subject to the duty of skill and care in the underlying contract. However, other key obligations such as actually delivering the models as specified in the Protocol, compliance with the Information Protocol and arranging for consultants to incorporate the Protocol in their own sub-contracting arrangements rely on a reasonable endeavours obligation (clause 4.1.2). Employers may want to strengthen this obligation to ensure that all modelling obligations are undertaken in accordance with the contractual standard of reasonable skill and care.
Intellectual Property Rights
IPR ownership is retained by the consultant and modelling output is licensed or sub-licensed to the Employer. These provisions are meant to take precedence over what might be in the underlying contract. The consultant's liability for the use to which modelling is put is also limited to the uses for which the modelling is specified (clause 7).
One of the industry's major concerns was difficulties that arise from software failure or corruption. Clause 5 provides that there is no warranty with regard to the integrity of any electronic data and excludes liability for any corruption or unintended amendment / alteration once the data has been transmitted (save where caused by the consultant's own failure to comply with the Protocol).
A recurring theme in the Protocol is the extent to which provisions take precedence over the underlying contract. The general principle is that the Protocol takes precedence if there is conflict or inconsistency with the underlying contract, "except where the Protocol states otherwise". Any such exceptions should be reviewed to ensure they are consistent with parties' underlying contract.
Not a 'one size fits all'
The Protocol is admirably crisp weighing in at a mere eight clauses. It is well-placed to do what it has been designed for: to provide a baseline Protocol that promotes the general uptake of Level 2 BIM. Much of the detail still requires the input of BIM competent professionals: this is a Protocol to help enable BIM use but it will not, of course, do anything without the parties' commitment to work together to make it happen. Employers will need to carefully review it to ensure that using the Protocol will deliver on their intended project-specific BIM outcomes. Whilst it will have mass appeal, it is not a 'one size fits all'.
Alongside the Protocol, the CIC published its definition for the role of the information manager in projects where BIM is used, the Outline Scope of Services for the Role of Information Management (5-page / 299KB PDF).
The CIC recognises that the key to the success of any BIM enabled project will be the part played by the Information Manager and that an industry getting to grips with BIM will face difficulty in defining exactly what this role entails.
The Scope gives those planning the procurement of a BIM-enabled project a tool to help select the right skill-sets for a role that is still too young to have an industry-accepted services scope.
The quality and integrity of information is at the heart of the BIM value proposition. This role is integral to the successful delivery of BIM enabled projects and the role is integral to the CIC's own BIM Protocol.
The Information Manager will be the gate-keeper of the modelling process. The role will require robust policing of the information management Protocols, ensuring data for modelling is inputted according to the requirements of the applicable Protocol in compliance with any agreed naming conventions and 'data drops' (ie the agreed points at which data is to be delivered to the client and the agreed content and format of those). In addition, the Information Manager must ensure that safeguards are in place to ensure data is secure and not susceptible to corruption.
The risks of getting it wrong
If the role is not adequately undertaken, the risk is that the models will not deliver the range of benefits that the client expects, such as reliable clash detection, programming analysis and during the operational phase, thermal efficiency projections.
An add-on to existing appointments?
As the CIC makes clear in its guidance notes to the BIM Protocol, the role is designed to be taken on by an existing consultant such as a Design Lead or Project Lead. The guidance suggests that a stand-alone role will be the exception.
A multi-faceted role
The appointment will have to define the services of the Information Manager. The CIC will publish two versions, a detailed version (that is to be made available at the BIM Task Group's website http://www.bimtaskgroup.org and the shorter Scope published today. The Scope consists of a short guidance emphasising its place within an overall schedule of services and then defines in outline form the services of an Information Manager. These are collated under 4 headings:
The division emphasises the combination of information and people management skills that the Information Manager must have. Part of the role involves fostering a collaborative culture conducive to information exchange amongst project participants.
It will be interesting to see the more detailed set of services when they are published. In the meantime, the Scope will provide a much-needed steer to those procuring projects on exactly what the role entails and by implication the criteria to consider when selecting the most suitable candidates to take it on.
The Scope is essentially an outline, and the input of BIM competent professionals will be required to fully flesh out roles on individual projects. A key priority as the BIM Protocol guidance points out will be to ensure in the final scopes of services that: "The Information Manager has no design related duties. Clash detection and model coordination activities associated with a 'BIM Coordinator' remain the responsibility of the design lead."
Alongside the BIM Protocol the CIC published a Best Practice Guide for Professional Indemnity Insurance. It summarises the key areas of risk which professional indemnity (PI) insurers associate with Level 2 BIM and suggests what professionals can do to manage those risks.
The Guide suggests that insurers do not currently consider that there are any sufficiently serious issues with Level 2 BIM which are likely to result in coverage restrictions for consultants or which will materially alter the current risk profile.
The effect on premiums for consultants undertaking Level 2 BIM projects is regarded as minimal, provided services and activities fall within the range anticipated by insurers.
However, the clear advice is that consultants should seek assurance from brokers before commencing a Level 2 BIM project. Insurers may want to know whether any additional contractual duties are being assumed, whether the insured is undertaking the role of Information Manager, and what protocols are being used for the project.
The CIC's warning note for the future is that Level 3 BIM raises very different liability issues and will need further thought and consideration including bespoke solutions
For more information about BIM from Pinsent Masons, the law firm behind Out-Law.com, contact [email protected]