BIM update

21 November 2013

Over the past year, several bodies have begun to translate the theory around BIM into practical resources for those encountering it, in some cases for the first time.

In September 2012, Wragge & Co's experts wrote an alert about the increasing focus on Building Information Modelling (BIM) in both the public and private sectors, and the implications for clients, contractors and consultants involved in 'BIM-enabled' projects, including:

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  1. The management of information and licensing of design information;
  2. Risk allocation and liability for those inputting into a model, and the impact on professional indemnity (PI) insurance cover;
  3. New roles that are likely to emerge, such as the 'Information Manager;
  4. The extent to which all of this is likely to affect contract documentation.

Over the past year, several bodies have begun to translate the theory around BIM into practical resources for those encountering it, in some cases for the first time.

Over the past year, several bodies have begun to translate the theory around Building Information Model (BIM) into practical resources for those encountering it, in some cases for the first time.

1. Construction Industry Council (CIC) - Building Information Model Protocol

The CIC has published a draft BIM Protocol, designed to be incorporated into all construction contracts used on a BIM-enabled project. The protocol is designed to support projects operating at BIM Level 2 (managed 3D environment, held in separate discipline BIM tools with attached data - integration on the basis of proprietary interfaces or bespoke middleware - may utilise 4D programme data and 5D cost elements, as well as feed operational systems).

The primary objective of the protocol is to facilitate the production of models at defined stages of the project, by way of 'data drops'. The deliverables at each stage of the project are set out in a 'Model Production and Delivery Table', which is bespoke for each project.

It is the employer's responsibility to ensure that a BIM Protocol is included in all direct professional appointments and contracts. The employer is also obliged to appoint an 'Information Manager' (see section three for more detail on this role).

The protocol itself is formed of eight clauses in total and supplemented by comprehensive guidance notes.

Key issues:

Incorporation into contracts

The protocol can be incorporated into contracts very simply. It contains its own model enabling-amendment and the BIM Task Group Website contains draft enabling amendments for many common forms of contract and appointments. However, this does not mean that it can or should be incorporated with any less care or thought given to it than any other aspect of the contract.

The Model Production and Delivery Table needs to be drafted carefully, to ensure the right deliverables are produced at the right time. In particular, the 'level of detail' required at each stage of the design process is an important concept to note, as it is integral to the definition of the 'permitted purpose'. The 'permitted purpose' defines the scope of the intellectual property licence and liability provisions (see also 'Liability' below). The CIC document contains a specimen table, but thought will need to be given to this on a project by project basis.

Project specific 'Information Requirements' (the relevant standards, protocols and specific file information details required for the purposes of information management - see PAS1192-2 below) are also required to be appended to the protocol. Again, specimen and draft forms are provided by the CIC.

The CIC envisages that much of the information will come from the tender documents, but that the Information Requirements will be an evolving document, and subject to the change control procedure in the contract. Therefore, again, parties should take care to ensure that the requirements are as comprehensive as possible in reflecting their intentions from the outset.

Consideration also needs to be given to how the protocol interacts with the rest of the contract. Where there is conflict between the protocol and any other contract document then the protocol is intended to take priority.

Therefore, where there is interaction or potential conflict between provisions, parties need to make sure that they are comfortable with the provisions of the protocol, or make amendments where necessary.

Treatment of intellectual property

In common with most standard forms of construction contract and professional appointment, the designer retains ownership of the intellectual property in its model. The protocol contains a licence for use of the designs by the employer, and a sub-licence for use by the other members of the project team.

The parties should take care to ensure that the licence in the protocol is compatible with the licence that may be contained in the main body of the contract. In particular, it should be noted that the licence in the protocol is revocable for non-payment of fees, to the extent that any licence in the body of the contract is similarly revocable. A revocable licence is often unacceptable to employers on the basis that it has the potential to put the entire project in jeopardy in the event of a dispute over even a small amount of fees (in respect of which there are various other routes to resolution).

In BIM-enabled projects, where models are shared, there could also be major implications for all parties in the event that one party revokes its licence. Therefore, it is anticipated that employers will continue to insist that contractors and consultants rely on their other remedies in the event of disputes over payment, such as suspension and adjudication.

Liability

Clause 7 of the protocol states that the relevant project team member has no liability to the employer arising from modification, amendment, transmission, copying or use of the model materials outside of the 'permitted purpose'. The 'permitted purpose' is defined as:

"a purpose related to the Project (or the construction operation or maintenance of the Project) which is consistent with the applicable Level of Detail of the relevant Model (including a Model forming part of a Federated Model [a Model consisting of connected but distinct individual Models]) and the purpose for which the Model was prepared"

This operates as a protection for the project team member in relation to any attempted use of the model prematurely which results in a loss. This demonstrates clearly why the employer should take care to describe the relevant 'levels of detail' in its Model Production and Delivery Table, bearing in mind that its use will go further than being a pure specification of the employer's information requirements for each given stage.

Clause 5 also deals with liability in relation to the corruption of electronic data. The project team members do not warrant the integrity of any data delivered pursuant to the protocol and are expressly relieved of any liability arising from corruption or unintended amendment of models after they have been transmitted by the project team member (unless it arises from a failure to comply with the protocol).

This means that the default position under the protocol is that the risk of corruption after data has been delivered lies with the employer. Employers may need to consider whether they are willing to bear this risk, taking into account who is best placed to manage it (e.g. whose software is being used, if testing has been/should be carried out and by whom).

2. NEC3 - How to use BIM with NEC3 Contracts

In our previous BIM alert we referred to the JCT 'Public Sector Supplement', which suggests incorporating aBIM Protocol as a Contract Document in order to deal with BIM-related issues in JCT contracts.

In the meantime, the authors of the NEC have also published a short guide to assist practitioners and professionals with the implementation of BIM under the NEC forms of contract.

They suggest that the technical requirements of any BIM Protocol should be incorporated into the Works Information, while the parts of the protocol relating to rights and liabilities should be added to the contract as Z Clauses.

In relation to the CIC Protocol, the NEC guide identifies the clauses of the protocol considered to be 'unchanging' clauses to be included in the contract, and those which are more appropriate for inclusion in the Works Information. It is also suggested that the key identifier of a clause that should be included in the Works Information, is the likelihood of the requirement to change as a result of employer or project manager instructions, and thus give rise to a compensation event.

Other issues when using BIM with NEC contracts:

  • The authors of the NEC also point out that consideration should be given to the consequences of failing to comply with the protocol, and suggest that the addition of Compensation Events relating to failures to comply with the protocol may be appropriate. Parties will need to decide to what extent this is appropriate, and whether a Compensation Event should arise only from an employer failure, or whether it should also extend to other members of the team failing to comply with their obligations, or further, any event preventing compliance with the protocol to the extent that it falls outside of the contractor's reasonable control (the latter is suggested).
  • It is also suggested that, due to the collaborative nature of BIM, the parties may want to utilise optional clause X12 (partnering).

3. CIC - Outline Scope of Services for the Role of Information Management

The CIC has published a scope of services - intended to be used for the role of Information Manager on BIM-enabled projects. The CIC BIM Protocol requires the employer to appoint an Information Manager to manage the processes and procedures involved in the information exchanges and data drops, and to update the Model Production and Delivery Table.

The CIC suggests that these services are expected to be added to another role (such as the design and build contractor or lead designer), and that the most appropriate person to carry out this role could change as the project progresses.

The CIC also stresses that the Information Manager role does not involve any design-based responsibilities. Clash detection and model co-ordination are the responsibilities of the 'BIM co-ordinator', ideally the lead designer.

4. PAS 1192-2:2013 - Specification for information management for the capital/delivery phase of construction projects using BIM

The CIC encourages the use of common standards of working, such as those under PAS 1192-2.

PAS 1192-2 builds on previous codes of practice relating to the collaborative production of construction information, and has been specifically published to set out a framework for collaborative working and information management on BIM-enabled projects.

The detail of PAS 1192-2 is beyond the scope of this alert, but it provides a useful resource for those looking at the practical implications of information management in a BIM-enabled environment. Many of the practical concepts that are dealt with in the BIM Protocol (Information Requirements, Levels of Detail etc) are covered in detail in PAS 1192-2.

5. CIC - Best Practice Guide for Professional Indemnity Insurance When UsingBIM

The Best Practice Guide is a useful first port of call for consultants and contractors being engaged on aBIM-enabled project for the first time.

It has been produced in consultation with the PI insurance market, and suggests that there is consensus that, at Level 2 at least, BIM presents no issues that are sufficiently serious to give rise to insurance coverage issues.

Insurers are said to take comfort from the fact that BIM at Level 2 provides for separate models and a clear audit trail for the purpose of ascertaining liability.

The guide suggests that it is unlikely that policy modifications or endorsements will be required for the purpose of carrying out a Level 2 project, but recommends disclosure to insurers, at least in the first instance of BIM engagement.

The guide agrees with many commentators in suggesting that BIM at Level 3 is likely to have different implications for insurers and insureds, given that it requires the use of a combined model. As BIM maturity progresses, then bespoke solutions may be required, and further consultation with insurers will be needed in order to fully explore the potential issues.


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