The BIM Protocol, published by the Construction Industry Council (CIC) in February 2013, whilst not the only BIM Protocol available, is likely to be heavily used on level 2 projects for the foreseeable future, given its support by the BIM Task Group and its current high profile. Much of what has been written to date on this protocol has concentrated on the relationship between the Employer and the Contractor, or the Employer and those members of the design team with whom the Employer will have a direct contract. The CIC protocol itself is based upon the premise that the protocol will be incorporated into all direct contracts between the Employer and the Project Team Members.
In reality, the protocol will have to be cascaded down the supply chain in order for it to achieve its aims.
The protocol, however, is intended to be used by all the parties involved in the “use, production or delivery of Models on the Project” according to the guidance notes. The guidance notes suggest that this is the definition of “Project Team Member”, but the protocol itself defines “Project Team Member” as “the person appointed by the Employer pursuant to this Agreement”. The Agreement in question is simply the agreement between the Employer and the Project Team Member to which the protocol is attached – inevitably perhaps, a rather circular definition. What this definition overlooks, however, is that in reality the Employer will not as a matter of course be entering into direct agreements with everyone who is involved in the use, production or delivery of the Models on the Project. For example, the designer of the heating and ventilation system, or the supplier and installer of a proprietary product, will probably not enter into an agreement with the Employer at all – they will contract with the Contractor, as is common practise nowadays. In reality, the protocol will have to be cascaded down the supply chain in order for it to achieve its aims.
The protocol addresses this issue in clause 4.1.3, which requires Project Team Members to arrange for the protocol to be incorporated into any sub-contracts they enter into “to the extent required to enable the Project Team Member to comply with this Protocol”. I suggest that in practise this means incorporating the protocol in its entirety to ensure that the Project Team Member does not find itself owing obligations to the Employer which it can’t pass on to its sub-contractor. In such circumstances, how effectively does the protocol work? There are a couple of issues that arise which I think are worth bearing in mind.
The first thing to remember is the nature of agreements between parties in a supply chain. It is not unusual for the nature and extent of the parties’ contractual obligations to be the subject of negotiation between the parties in the supply chain. This is relevant to the protocol because on at least one occasion (clause 4.1.1) the protocol makes express reference to the level of skill and care “required under the Agreement”. This is in relation to the production of the Specified Models to the relevant Level of Detail specified in the Model Production and Delivery Table (MPDT). Clause 4.1.2, however, refers to an obligation to “use reasonable endeavours” when a Project Team Member is delivering the Specified Models, using the Project Team Models and complying with the Information Requirements. This may in fact be a different level of skill and care to that required under clause 4.1.1. This is just the sort of fine distinction that may become an issue if problems arise.
The second issue to consider in relation to the individual agreements in which the protocol is embedded is the extent to which these may be amended to take account of the obligations in the protocol. Whilst it takes a relatively minor amendment to incorporate the protocol, should these amendments go further? If, for example, one of the Project Team Members causes a delay to the provision of information set out in the MPDT which itself delays the project, is this ground for time and/or money under the relevant contract? This may be an issue that is the subject of negotiation between the Employer and the Contractor in the main contract; will it turn out the same in the contracts flowing down the supply chain?
What happens if some members of the supply chain don’t enter into the protocol in the same form as others?
What happens if some members of the supply chain don’t enter into the protocol in the same form as others? Obviously, there is a risk that we will end up having the same arguments that will be familiar from other contractual documents where amendments between the parties affect the risk transfer. It is the Employer’s obligation under clause 3.1.1 to arrange for a protocol “in substantially the same terms as this Protocol” to be incorporated into all project agreements but there appears to be no specific sanction if this does not happen.
Finally, under clause 5 the Project Team Member does not warrant, expressly or impliedly, the integrity of any electronic data delivered in accordance with the protocol and has no liability to the Employer in connection with any corruption or any unintended amendment, modification or alteration of the data in a Specified Model which occurs after it has been transmitted by the Project Team Member (unless that arises as a result of the Member’s failure to comply with the protocol). Accordingly, residual liability for the integrity of the electronic data rests with the Employer. Again, assuming for the moment that this document is replicated down the supply chain, ultimate residual liability will pass back up the supply chain to the original Employer. Is this a risk that the Employer will be prepared to accept? Other protocols locate such residual risks elsewhere – for example, a number of US protocols leave it with the Contractor. If the Employer is not prepared to agree to this residual risk, it may seek to pass it back to the Contractor. Will we find it making its way back down the supply chain?
... it is worth bearing in mind that the protocol will be used primarily in the supply chain context and that it is not simply a question of assuming that it can be sent down the supply chain without these issues arising.
I appreciate that a number of these observations would apply to any contractual arrangement in the context of a supply chain. However, it is worth bearing in mind that the protocol will be used primarily in the supply chain context and that it is not simply a question of assuming that it can be sent down the supply chain without these issues arising. Care needs to be taken to ensure that the risk transfer operates correctly and that the protocol doesn’t become another area of dispute should things not go as planned.
About this article
A version of this article originally appeared in Building magazine.