The 2011 UK Government Construction Strategy included a mandate to use BIM Level 2, part of the strategy to encourage BIM was the publication of standard documents, including the Publicly Available Specifications (PAS) 1192 series of standards, in particular, PAS 1192-2
PAS 1192-2 is the “specification for information management for the capital/delivery phase of construction projects using building information modelling”.
The Construction Industry Council’s (CIC) BIM Protocol (the CIC Protocol) was also published in 2013 to assist BIM being reflected contractually.
The CIC Protocol was also updated in 2018 to reflect the current practices. The Second Edition was well received and is being incorporated into contracts. Nonetheless, surveys, reports and informal feedback suggest that BIM is still often not reflected in detail, or at all, in contracts, with provisions in relation to BIM non-existent or unclear and frequently inconsistent with the traditional approaches still be used by project teams.
In February 2018, May Winfield and Sarah Rock in partnership with the UK BIM Alliance published The Winfield Rock Report: Overcoming the legal and contractual barriers of BIM, considering the current understanding of BIM’s legal and contractual issues. The Winfield Rock Report noted that there was much confusion as to what “BIM Level 2” comprised of, especially amongst lawyers.
PAS 1192-1 and 2 were replaced by BS EN ISO19650-1 and 2 in January 2019 as commented below.
BIM in standard form contracts
The JCT 2016 suite of contracts contain references to BIM documents and anticipate that a BIM Protocol be included in the Contract Documents, and the NEC4 contracts published in June 2017 included a Secondary Option X10, “Information Modelling”. However, there are important differences between the two.
JCT allows for the use of a BIM Protocol whereas NEC4 refers to an Information Execution Plan, Information Model Requirements and includes stand-alone provisions in relation to BIM. NEC4 Option X10 can be used with a BIM Protocol (such as the CIC Protocol) as set out in the “How to” guide to using the CIC Protocol with NEC4. However, this is not particularly intuitive as X10 does not refer to a protocol, with the suggestion being to divide the Protocol between the Scope and the conditions of contract.
Whilst the BIM provisions within the standard forms are generally appreciated, the lack of a unified approach and clear guidance has added to the confusion and frustration. This has led to ambiguous or ineffective approaches to BIM.
BIM and JCT
JCT published the Building Information Modelling (BIM), Collaborative and Integrated Team Working practice note in 2016. This note gave an overview of how BIM methodologies and principles are applied, provided standard definitions and explained the BIM maturity. It also explained how BIM is more than software; it is a technology-assisted way of working, utilising interoperable software to encourage collaboration in the design, manufacture, construction and operation of a project.
The JCT more recently released the BIM and JCT Contracts practice note. The objective of the practice note is to further the construction sector’s understanding of the legal and contractual issues surrounding BIM, as well as suggest options for approaching issues in a collaborative and efficient way.
As design and build contracts are the most popular form of contract on projects utilising BIM, BIM and JCT Contracts focuses on the use of BIM with the JCT Design & Build Contract (D&B). It provides key points to consider when using the D&B alongside BIM processes and highlights the provisions under the D&B that may be most impacted by, or relevant to, a project using BIM.
BIM and JCT Contracts also includes guidance on incorporating a BIM Protocol into the D&B and a checklist of points to consider when preparing a BIM Protocol. Further, BIM and JCT Contracts includes a checklist of common contents of an Exchange Information Requirements to assist Employers specify their requirements in relation to BIM at tender stage and enable these requirements (and the tender responses) to be reflected in the contract.
BIM and JCT Contracts uses terminology from the BS EN ISO -1 and 2 and generally reflects these new standards (which are explored in greater detail below). It is the first contractual guidance note in relation to BIM to do so.
BS EN ISO 19650
ISO 19650-1 deals with concepts and principles applicable to the whole suite of BS EN ISO standards, whilst BS EN ISO 19650-2 covers the delivery phase of a project.
The next part of the BS EN ISO 19650 series, Part 3 (asset management), intended to replace PAS 1192-3, is in the process of being drafted.
Whilst there are a number of similarities between the PAS 1192 and ISO standards, there are some important changes. BS EN ISO 19650-1 requires an ‘information protocol’ to be included in all appointments on every project. The BS EN ISO 19650 documents also use different terminology to reduce interpretation errors when translated from English, such as ‘employer’ being substituted for ‘appointing party’ and ‘client’ being substituted for ‘appointed party’. This is meant to encourage international use.
A number of key supporting documents are now required under these standards. These include the following (in addition to an information protocol): Project Information Requirements; Exchange Information Requirements; Responsibility Matrix; Assignment Matrix; Master Information Delivery Plan; BIM Execution Plan.
BS EN ISO 19650-1 and 2 do not contain specific or prescriptive details or requirements on the form of the BIM contractual arrangements or documents. Nevertheless, the requirement for an information protocol underpins BS EN ISO 19650-1. In establishing the information protocol the appointing party is required to consider 1) the obligations relating to the management or production of information, including the use of the common data environment, 2) warranties or liabilities associated to the project information model, 3) intellectual property rights, and 4) use of existing asset information, shared resources and information during the project and following termination.
BS EN ISO19650 guidance
Information Management according to BS EN ISO 19650 – Guidance Part 1: Concepts (“Guidance”) was published in April 2019 by the UK BIM Alliance, Centre for Digital Built Britain and the BSI Group. Section 3.0 and Annex C of the Guidance consider the contractual and legal implications of the introduction of BS EN ISO 19650; Section 3.0 provides a general summary and Annex C considers the legal and contractual points requiring careful consideration at each stage of the ISO19650 process. The Guidance can be downloaded for free from www.ukbimalliance.org.
Annex C of the Guidance is intended to encourage those involved in preparing tender and contractual documents to take into account the ISO 19650 processes when doing so by running through some of the BS EN ISO 19650-1-2 processes step by step. The Guidance is not a substitute for reading BS EN ISO 19650-1-2 and it is important that these documents are reviewed carefully. The Guidance and the ISO 19650 Information Protocol (when published) should provide clarity in relation to the contractual approach to BIM and encourage consistency between contractual arrangements and the approach to BIM.
A better understanding of BIM
A driving factor behind the various guidance notes is to provide greater contractual clarity for BIM and address the confusion noted in the Winfield Rock Report.
The BIM and JCT Contracts note provides useful pointers for addressing contractual issues when specifying the Exchange Information Requirements in a JCT contract, as well as when preparing and completing a BIM Protocol. A few takeaways from the note are that construction professionals and their advisers should ensure contractual approaches in relation to BIM (including definitions and obligations) reflect the updated terminology and processes in BS EN ISO 19650 and that all contract documents, including the agreement and conditions of contract, contain all the necessary BIM requirements, rights and duties.
The introduction of BS EN ISO 19650 is a milestone development for the industry’s adoption of BIM and increases the importance of reflecting BIM processes in the contractual arrangements. The Guidance published to date, as well as the BS EN ISO 19650 Information Protocol when published, will assist achieving this aim. The Guidance in particular is very important to those involved in the preparation and negotiation of construction contracts in general.
Readers wanting to stay up to date on BIM legal and contractual developments can contact BIM4legal@gmail.com.
Andrew Croft and Kevin Henderson – Beale & Co
May Winfield – Buro Happold
Please note: this is a commercial profile.