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what does BIM mean for my contract

2 July 2014

Traditionally, building contracts are between two parties and there are no direct contracts between suppliers on the same tier. Since Building Information Modelling (BIM) is designed to encourage greater sharing of knowledge and requires greater co-operation between contractors, designers and suppliers, does it require changes to existing contractual arrangements or the creation of new direct contractual relationships?

The answer depends on what level of BIM you are using. The UK Government is seeking to implement BIM Level 2 for all centrally procured Government projects by 2016. Level 2 requires few amendments to current standard form contracts (summarised below), since it presents data in specific BIM databases that may include information about cost or programming, but there is no single database for all such information and commercial data is held separately. You can therefore think of each model as a drawing or design in the more traditional sense. If your contract clearly defines your role and responsibility in the usual way, there should not be any significant change to your role or responsibility.

Practical tips

On a BIM-enabled project you will need to address BIM in your building contracts and professional appointments in the following ways. If the project goes beyond level 2, further changes will be required.

Use a BIM protocol

A BIM protocol is a document setting out the practical ways in which BIM will be implemented. Different protocols do this in different ways. The Construction Industry Council (CIC) BIM protocol was commissioned by the Governments BIM Implementation Task Group and is likely to become the benchmark for level 2 projects in the short to medium term. It can slot into existing contractual relationships. Points to note are:

  • it takes priority over other contract documents - so check your contract for a similar priority clause to avoid clashes
  • in keeping with the Governments vision of data drops, all project team members are obliged to produce their BIM models to the levels of detail provided in Appendix 1 - so make sure that the project specific information is properly filled out and clearly defined
  • intellectual property rights are retained by the consultant and modelling output is licensed / sub-licensed to the employer - this will require amendment e.g. if the employer wishes to own the intellectual property produced by the project team in relation to the BIM
  • BIM models must be prepared subject to the duty of skill and care in the underlying contract. Other obligations (e.g., delivering the models), rely on a reasonable endeavours obligation
  • the employer bears the risk of any software failure or corruption, unless a project team member has failed to comply with the protocol.

Insert specific contract clauses to incorporate the BIM protocol into your contract

Parties will need to incorporate a BIM protocol into their contract. The drafting is relatively straightforward and the JCT and NEC forms have published suggested wording (as has the CIC). Tips:

  • make sure you identify which version of a protocol is to be used. Avoid using terms like "the latest version" as this can result in different versions being incorporated into different contracts on the same project
  • make sure that the terms used in the protocol are compatible with the terms in the relevant contract.

Amendments to a bespoke building contract will need to be tailored to fit with the other contract provisions. Issues to consider include:

  • do you need an express obligation to comply with the BIM protocol or can you identify the BIM protocol elsewhere?
  • should the contractor be obliged to procure that its professional consultants, sub-contractors and suppliers will comply with the BIM protocol?

Amend a professional appointments schedule of services

Very few major publishers of standard form professional appointments have amended their documents in light of BIM. In addition to the bespoke contract amendments above, consider if the scope of services / work stages require amendment, or if the professional appointment should expressly require each member of the professional team to comply with the requirements of the BIM information manager.

Insurance

The CIC Best Practice Guide for Professional Indemnity Insurance suggests that insurers currently consider that the effect on premiums Level 2 BIM should be minimal. It recommends that if you are undertaking BIM for the first time you should check with insurers / brokers before commencing a project to make sure everyone is happy with the contractual arrangements and your role.

Conclusions

BIM Level 2 should not alter traditional design roles and responsibilities. Despite the new technology and new way of producing designs, it is far more important to understand what you (and others) are being asked to provide in terms of BIM, and when you need to provide it. You must understand your design brief and the ongoing obligation to review your design.

BIM Level 3 will require far greater sharing of information and horizontal cooperation. As a result, it is likely to require relatively widespread changes to building contracts and professional appointments. However, at this stage the industry as a whole has done little more than identify areas of concern and detailed drafting is some way off.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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