The recent publication of the BIM protocol and other documents by the BIM Task Group in collaboration with the Construction Industry Council (CIC) is commendable. Also commendable is the fact that the publication came after wide ranging consultations. Coming under the auspices of the CIC it is expected that the documents will enjoy acceptance across various industry groups.
The CIC BIM protocol, which is the prime document in the series, gives context to the UK approach to legal issues that arise in the use of BIM working methods in projects. The timing of the release of the publications also helps reduce any incidence of apathy that could have developed because of the absence of legal documents to support the adoption of BIM.
In this article, we want to go beyond a general analysis of the provisions of the protocol and focus in some detail on the approach the current edition of the protocol adopts in dealing with some of the more difficult legal issues raised by the adoption of BIM working method.
The Protocol is simple and concise; it has eight clauses and a guidance section that gives a good background of its aims and objectives. It opens with a very helpful definition section that guides stakeholders through new terminology that comes with BIM. A word of caution, however, the protocol uses some terms which may be interpreted differently to accepted use in construction. One of these is 'Material', which has a different meaning to 'material' as used in construction contracts and refers in the context of the BIM protocol to 'all information in any electronic medium prepared by or on behalf of the Project Team Member'.
The position of the protocol in the hierarchy of contract documents and the obligations of the parties could be summarised as follows:
- The protocol takes priority over all other contract documents and in the event of a conflict between the terms of the protocol and the other contract documents, the protocol would prevail (including the main agreements between the parties)
- The Employer is to arrange for a protocol in similar terms to be incorporated into all agreements for the project. The guidance note advises that this should be limited to parties involved in the use, production or delivery of models on the project
- The Employer is to ensure that the Information Requirements (this is a document showing software choice, data drops, file naming and numbering convention, standards etc. It forms part of the Protocol, as appendix 2) and the Model Production Delivery Table (Model Production and Delivery Table is a document indicating models to be produced, parties required to produce them, Level of Detail of each model among others, it forms part of the protocol as appendix 1) are regularly updated unless the duty is assigned to another Project Team Member under the main contract between the parties
- The Employer is to ensure that the Information Manager is appointed
- The persons to be appointed to cover the role of the Information Manager at the different stages of the project are to be set out in the Information Requirements
- The guidance section to the protocol (which does not form part of the protocol as a contract document) advises that the Employer is to appoint an Information Manager which may be the lead designer. It links the duties of the information Manager to the scope of services for the Information Manager prepared by the CIC. It also advises that the Information Manager shall have no design related duties which it suggests should remain the responsibility of the design lead.
- Each Project Team Member is to produce the Specified Model (or Models) set out in the Model Production and Delivery Table (the Table) to the Level of Detail stated in the Table.
- Using reasonable endeavours and subject to events outside its control, each Project Team Member is to deliver the Specified Models at the Specified Stage in accordance with the Information Requirements
- Each Project Team Member is to arrange for the inclusion of this protocol into sub-contracts to allow it meet its obligations under the protocol
- The protocol limits any liability for using the Specified Models and materials prepared during the course of the project to the Permitted Uses which is defined with reference to the Level of Detail of the relevant model.
The protocol is drafted for projects at level 2 of the UK BIM maturity index. At this level of BIM (adopting the terminology of the Protocol), Project Team Members identified as originators in the Model Production and Delivery Table produce the models specified under the Table as required by the Information Requirements and retain control over such models. Information is sourced from other models by reference, federation and direct information exchange. Basically a change in one model does not automatically create a change in another model, the model originators retain full control over the contents of their models adding information to it from other models as is required in line with the Permitted Uses until the model is handed over in the latter stages of the project. The protocol encourages parties to adopt common standards/working methods like those under PAS 1192-2.
PAS1192 -2 sets out a framework for collaborative working and specific guidance for the management of the information exchange process including the setup of a Common Data Environment (CDE).
Difficult legal issues
The protocol archives what it sets out to achieve: a simple document which, with a minimal set of important amendments can be added to standard forms of contracts and appointment documents. In this article, we have decided to go beyond this basic proposition to interrogate the protocol for areas of possible disputes and gaps.
Integrity of electronic data (Clause 5 – Electronic Data Exchange)
One of the vital issues at level 2 of BIM is the integrity of the information and data shared. PAS 1192-2 puts this succinctly thus:
'The fundamental requirement for producing information through a collaborative activity is to share information early and to trust the information that is being shared as well as the originator of that information'
This has to be weighed against the risk adverseness of insurance companies to corruptibility of electronic information. It is this delicate balance that the protocol tries to achieve in clause 5.
Clause 5.2, deals comprehensively with corruptibility of data by providing as follows:
'5.2 The Project Team Member shall have no liability to the Employer in connection with any corruption or any unintended amendment modification or alteration of the electronic data in a Specified Model which occurs after it has been transmitted by the Project Team Member, save where such corruption, modification or alteration is a result of the Project Team Member's failure with the protocol'
Clause 5.1 creates some difficulty when it apparently absolves a Project Team Member from liability for the accuracy of electronic data delivered by it. The clause provides as follows:
5.1 Without Prejudice to the Project Team's Members Obligation under this protocol and the Agreement, the Project Team Member does not warrant, expressly or impliedly, the integrity of any electronic data delivered in accordance with this Protocol'.
Starting with clause 5.2, it would be good advice for the Employer to recognise that it bears the residual risk for software related 'unintended amendments, modification and alteration' and to ensure the mitigation of this risk. It might also be worthwhile reconsidering, especially in a design and build contract, which party has more control over this risk i.e. who chooses the software to be used and tests it for suitability and to reassign this risk appropriately. Also the change/variation provisions of the main Agreement would need to be amended to cover the circumstance of extension of time due to software issues; this would only be necessary if it is determined that general ground for extension (any default of the Employer) does not cover this eventuality.
The CIC BIM protocol takes a distinctly different path in Clause 5.1 to the provisions of other BIM protocols and BIM provisions.
For instance the ConcensusDocs 301 BIM addendum, published in the US by AGC, provides as follows in its clause 5.1:
'Each Party shall be responsible for any contribution it makes to a model or that arises from that party's access to that model'
And in 5.3:
'To the extent that any or all Design Models are included as Contract Documents, Project Participants may rely upon the accuracy of the information in those Design Models ...'
The recently published CIOB Contract for use with Complex Projects provides in clause 11.3.4 that a Contractor required to design the whole of the works using BIM shall:
'select and remain solely responsible for the suitability and integrity of the selected software and any information, drawings, specifications or other information extracted from the model'
The CIOB contract for Complex Projects also mandates the indemnification of the Employer for any contribution made by a Contractor who is not designing the whole of the works but contributing to a model (clause 11.2.3).
There are probably some other interpretations to clause 5.1, however one of the plausible interpretations, is that while Project Team Members must adhere to the provisions of the Protocol in terms of the format of electronic data (Information Requirements) and the content of model and time for submission (Model Production and Delivery Table); they take no liability for the accuracy of the content of electronic data delivered during this process. If this interpretation is correct, it is precariously close to the liability avoiding practice of the recent past, where electronic models produced for clients were marked for 'information purposes only'. While this might suit the risk adverseness of insurers, it does not achieve the requirement for collaborative sharing of information as correctly stated in PAS 1192-2. It might even lead to inefficiency, if Project Team Members feel the need to verify the integrity of electronic data that have been submitted into the Common Data Environment.
Intellectual Property – revocable licence (Clause 6 – Use of Models)
Intellectual property and copyright licences are typically either irrevocable/non-terminable or licences subject to the payment of fees. As the name implies an intellectual property licence subject to fees may be suspended or revoked for non-payment while the opposite is the case with an irrevocable licence. The protocol at clause 6.4 makes the licence provided under it liable to suspension or revocation for non-payment to the extent that any licence in the main Agreement provides for such suspension or revocation. This provision seems aligned with similar provisions in some of the standard form appointment documents.
The potential problem with this approach is how parties deal with the suspension or revocation of a licence for a model or contribution to a model during the currency of the project. As stated previously, at BIM level 2, there should be the sharing of a greater amount of information earlier, so the scenario of one of the smaller sub-consultants or specialist sub-contractors suspending the IP/Copyright licence or sub-licence it has offered for its contributions/model due to non-payment of fees or during disputes over fees is probable. The Protocol does not offer any provisions for such scenario; legally if the copyright licence is suspended or withdrawn the power to grant sub-licences also falls away, therefore for BIM level 2 projects, such suspension or revocation could create a string of liabilities for participating parties, making it imperative that the material covered by such suspension or revocation is withdrawn from use in the project until the issue is resolved. This could cause serious disruption to a project.
The US ConcensusDocs 301 BIM addendum deals with this scenario in its jurisdiction by specifying that the right of suspension or revocation is activated only after a decision of a court or arbitration. It also creates a waiver in favour of other Project Team Members not directly involved in the payment dispute, by excluding them and licences issued by them from any liability on account of the suspension or revocation of the IP/copyright rights. It is debatable whether such approach would fit into UK Construction Law.
When this issue was brought up for discussion in the NBS 2012 Roundtable, it was the opinion of the specialists that the licences under the Protocol would be irrevocable, so the scenario suggested above would not arise.
It seems that making licences given under the Protocol irrevocable would be best practice to avoid the disruption of a project due to a payment dispute. If this approach was adopted, the robust nature of UK construction law on payments would still provide Project Team members who have genuine fee payment problems with the right of suspension of some or all obligations, the right to a relatively quick decision from an adjudicator and right of interest on outstanding payments.
One of the advantages of the early release of the CIC BIM protocol is that it allows sufficient time for it to be analysed in various context before it becomes a common feature of construction contracts. In this article we have highlighted two areas that may require some attention or further analysis.
On 1 July 2013, NBS will hold a second Roundtable on BIM legal issues, where these and many other issues relating to the legal aspects of the adoption of BIM will be discussed extensively.