Shona Frame, Partner at international law firm CMS considers the legal implications of BIM in contractual documentation…
Much has been done in relation to the technical aspects of BIM and its implementation. However, there has been less focus on the legal aspects and specifically how to dovetail the technical requirements of BIM and the obligations of the various parties into the contractual documentation.
To date, the standard form drafting bodies have reacted to BIM by publishing proposed amendments to existing standard forms, very much adopting a light touch approach.
JCT and SBCC published a public sector supplement containing proposed contract amendments providing for the inclusion of “any agreed building information modelling Protocol” as a contract document or within the employer’s requirements. It is left to parties to select a protocol.
NEC3 also published a guide titled “How to use BIM with NEC3 contracts”.
The NEC3 contract assumes adoption of the CIC BIM Protocol. It suggests that the parts of the Protocol dealing with technical requirements should be included within the Works Information, allowing amendments to be instructed to them which can be dealt with as compensation events. The parts which modify conditions of contract or which deal with parties’ rights and liabilities should be added by Z clauses into the contract conditions, preventing them being amended unilaterally.
The need for compatibility between the Protocol and the contract is recognised as is the possible need for additional compensation events, e.g. for events preventing compliance with delivery of Models in accordance with the Protocol.
Is this sufficient? It is important not to look for changes for the sake of change. At each stage of the contract it makes sense to ask what has changed in contractual terms by the introduction of BIM.
Having said that, there are a number of areas where thought is required to ensure additional BIM requirements are dealt with.
Key issues include:
- Ensuring there is an integrated and consistent set of contract documents;
- Avoiding conflicts between documents;
- Providing for a hierarchy of documents;
- Clarity of roles and responsibilities;
- Involvement of whole supply chain.
The BIM Protocol is a key part of the BIM contractual structure. It is intended to be incorporated into appointments between the employer and the project team and, in turn, with the supply chain.
The CIC Protocol (which was commissioned by the BIM Task Group) includes a number of key provisions where there is a reasonable likelihood of there either being a clash between it and standard form contract provisions, or where some addition is required to the standard form conditions to recognise Protocol requirements.
For example, the Protocol introduces a new Information Management role. It also provides that in the event of a conflict between the Protocol and other contract documents, the terms of the Protocol prevail, the opposite to the position in most standard forms.
There are provisions concerning employer and contractor obligations including provision of design information in the form of models, applicable standards, Employer’s Information Requirements, delivery of models, archiving procedures and resolution of conflicts between information extracted from a model and the model itself.
Areas where standard forms might require drafting changes to ensure there are no clashes between contract conditions and Protocol include things like:
- Definitions which may differ as between the contract conditions and the Protocol;
- Clarity over who is performing new roles (e.g. Information Manager) and implications of this;
- Design submission procedures;
- Information required schedules;
- Communications Protocol setting out how parties are to communicate and timescales for this;
- Supply of documents – what documents are to be provided, by who, when, where and how;
- Documents to be supplied at the end of the construction phase.
At the least, a hierarchy provision is required to deal with conflicts between the contract provisions and the Protocol and to provide for what takes precedence.
This also requires to be stepped down into subcontracts to ensure that the whole supply chain is under the same obligations.
Looking at the bigger picture, BIM works best if all parties are involved from an early stage and work on a collaborative basis. This raises issues about the need for collaboration between, and early engagement by, multiple parties including employer, contractor, designers, key subcontractors and building end users. It may be that these parties should have rights and obligations as between each other which raises the question of whether multi-party contracts might be desirable in the future.
Looking to the post-construction phase and the Soft Landings initiative, there is a clear need for there to be a tie-up between the very early design phase of a building and its end use.
Contractual considerations for this include:
• Identifying objective and measurable KPIs at an early stage of the development of the project;
• Provisions for as built information to be handed over on completion;
• Licensing arrangements to allow for use of design material;
• Provisions for information to be updated to take account of changes through the life of the building.
None of the above should act in any way as an obstacle to BIM adoption. Instead, they are simply sensible measures to take in order to have coherent and fit for purpose contracts.
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