The recent issue of BIM contract documentation represents a significant watershed. That is not to say that BIM has not already become part of the process used in some construction projects. It has, but to date it has been used with a high degree of informality in “pilot” projects or within organisations as part of a commitment to BIM.
The significance of the new documentation is that it now places the use of BIM in a project specific contractual context and the insurance industry has, for the first time, expressed its views as to the limit of what existing insurance arrangements will tolerate.
The implications are far reaching. Those who adopt BIM are required to consider carefully the contract structure across a series of contracts and liaise with their insurers to gain some assurance that their proposed use of BIM will not compromise their insurance cover, or lead them into taking on uninsured risks.
So what has caused this change in context?
On the 28 February 2013, the CIC and BSI published a series of documents which have been much heralded by the BIM task group. There has been some slippage. The documentation was expected last year and has been some time in gestation.
The documents are;
- CIC / BIM Information Model (BIM) Protocol (“The Protocol”)
- CIC / The Best Practice Guide for Professional Indemnity Insurance When using Building Information Models (“the Best Practice Guide”)
- CIC Outline Scope of Services for the Role of Information Management
The documents are available for download at the CIC website: http://www.cic.org.uk/home/index.shtml
The Guidance Notes to the Protocol explain its use. In summary, it is a contractual document incorporated into the agreements entered into by the Employer and his supply chain, and between the supply chain and their contractors, as a new section to their existing contracts.
The BIM protocol will take precedence over the other parts of the contracts and contains a series of obligations and further information governing the Building Information Modelling. For the members of the industry who have used partnering Option X12 in the NEC contracts it works in similar way; introducing common information and procedures into a group of otherwise separate existing contracts.
The Protocol consists of 8 standard clauses which set obligations and limitations that apply to the Employer and the Project Team. In addition the parties are required to produce a “Production and Delivery Table” and the “Information Requirements”. Essentially the “Production and Delivery Table” sets out who produces what in terms of the models and the Information Requirements set out the more general specification for the information.
A Building Information Manager is appointed by the Employer (although that appointment can be changed) who manages the process.
Much is left to the parties to develop but to assist, a draft scope of services for the Role of Information Manager has been produced.
In addition, “PAS 1192-2″, the Specification for information management for the capital delivery phase of construction projects using building information modelling, published on the BSI website, provides support for those developing information requirements.
These documents all form part of the Government aim that Government Projects will need to be carried out to BIM level 2 by 2016 (Government Construction Strategy May 2011).
Projects are already being procured using BIM and the MOJ are taking a lead in the development of the process.
The documentation now published is born of the need to plan the production, integration, management and use of the information generated in the context of Building Information Modelling (BIM).
The use of BIM forms part of a more general strategy to change the manner in which buildings are procured.
This has two elements:
- Firstly, the identification by the Government of a series of decision gateways as the critical steps in its procurement process. These decision steps start at the stage of “the Brief” and go right through to “in use”.
- Secondly, an initiative “Soft landings”, which is a strategy to improve the reliability of information and the early capture of information so that decisions about the use, modification or procurement of a building can be based on information generated through out the lifecycle of the asset and its procurement.
Most simply stated, the information must be interoperable and reliable and the end product must “do what it says on the can”.
Those are lofty ambitions and so for present purposes the focus is on the more limited aim of achieving BIM level 2. It is in that context that the documentation produced to date has been developed.
The fact that the best practice guide for PI insurance has also been produced is recognition that the formal contractual status of the structures is something that insurers cannot ignore. It is interesting, therefore, to see what the guide says. Firstly, the document is the reported response to a consultation held by Griffiths and Armour with the insurance industry. The extent of the consultation is not known. The document is clear that advice must be taken from the broker when arranging insurance or taking on projects and the guide cannot be relied upon as advice itself.
The guide does, however, give a general statement about the views of the insurance industry and states that;
“The overarching response to the consultation from insurers has been that there are no issues with level 2 BIM which are sufficiently serious as to require coverage restrictions for consultants which use it, nor will its use, all things being equal, materially alter the risk profile presented by a consultant, and therefore the premium implications will be minimal.”
These documents recognise that going beyond BIM level 2 will challenge the existing liability structures, insurance market and commercial structure of the industry. To completely realise the “soft landings” goal would be to move the industry to a fundamentally different context where buildings are treated as products fit for their purpose, judged against forecasting based on reliable data predicting the buildings performance, and with a simple liability structure if the building does not do what it says on the can.
It is clear that the distinction between BIM level 2 and BIM level 3 and beyond is critical to the parties and to their insurers. Firstly so they understand when these documents are to be used and secondly so that the comfort derived from them is not illusory.
In which case is it fair to ask whether there a clear definition of what we mean by BIM Level 2?
The definition of BIM level 2 is often expressed in graphic “descriptive” form and has been given a broad description in the Strategy Paper produced by the BIM working Group.
PAS 1192-2 gives a set of principles for BIM level 2 but the notes recognise that there is no precise definition.
The BIM protocol, while stating that it has been drafted for all common construction contracts, “and supports working at BIM level 2“, does not give any definition of BIM level 2.
The insurance guide states; “the report does not consider the BIM level 3 environment” which will give rise to very different challenges. The report only concerns BIM Level 2 and the authors then give their definition of what the insurance industry means by BIM level 2.
They refer to a “federated model”. That is not itself a defined term but will be familiar to those who have considered the American version of the BIM protocol “the BIM Addendum” published by “Consensus DOCS”.
The BIM Addendum states;
“Federated Model means a Model consisting of linked but distinct component Models, drawings derived from the Models, texts, and other data sources that do not lose their identity or integrity by being so linked, so that change to one component Model in a Federated Model does not create a change in another component Model in that Federated Model.”
This principle of the integrity and auditability of the differing parties’ contributions to the Building Information is essential to the underlying liability structures. Although the BIM protocol appears to recognise this by limiting liability by reference to “permitted uses” and by excluding liability for corruption or unintended amendment of electronic data, it does not contain the clear risk allocation drafting or reliance clauses that the American model has included. The language of use adopted by the protocol is more the language of copyright than risk allocation.
So what are the implications?
For those responsible for the drafting of the Information Requirements and the Production and Delivery table, they must take care not to step beyond the boundaries of BIM Level 2.
Those contributing to a Model will have to clearly understand whether the contributions of others may amend or modify their contribution and be clear that they have not expressly or impliedly consented to, or permitted such use, if they are to stay within the boundaries suggested by the insurers and the protocol drafting.
Employers, their lawyers and consultants will now have to get to grips with a new section of the building contract, subcontracts and appointment documents and seek to ensure the Building Information is kept within the proper limits and parties are clear as to the implications of extending beyond those boundaries.
Amendments to standard form contracts will at some stage be published. But until then, since the BIM protocol takes precedence, contracts will have to be reviewed for consistency with other procedures such as design submission, copyright and change procedures in order to avoid unintended consequences.