Womble Bond Dickinson explores the second edition of the CIC BIM Protocols
The second edition of the CIC BIM protocol was published in April. It is intended to reflect current practices and standards and to be a more flexible document to use alongside different contractual arrangements. It will fit more easily with the other documents in the contractual matrix and shows a greater understanding of the need to integrate the legal and technical aspects of BIM, an issue which needs to be addressed to ensure that BIM projects have a clear and well defined delivery mechanism. As such it marks a significant development on the first edition and will certainly contribute towards the growing standardisation of BIM legal and contractual documentation, which is to be welcomed.
The first edition of the protocol stated that it took precedence over any other documents in the Agreement. This has now been amended so that it only takes precedence if there is a conflict in relation to specific clauses and appendices (clauses 3 and 4 and Appendices 1 and 2) and if the Agreement doesn’t include provisions stating how conflicts or inconsistencies should be resolved. This is appropriate in the context of the relevant provisions which deal with obligations on the Employer and the Project Team Member to assist with a smooth BIM process. Technical teams will need to check this suits their requirements and Project Team Members should consider whether they need to include or remove anything else from the Employer’s Requirements, consultants’ services and so on. Any priority clause in the underlying contractual documents will need to reflect this position, which is acknowledged in the guidance notes. Note however that this applies except where the protocol states otherwise so if you do not want this to be the case you would need some clear wording (or an amendment to the protocol) to deal with this.
The intellectual property provisions was an area which needed to be improved and has been. The licence granted is no longer revocable on the payment of fees and there is an acknowledgement that the Agreement may deal with intellectual property (which most do) as certain provisions only apply if the Agreement contains no provisions regarding intellectual property. This helps with concerns over inconsistencies although consideration will need to be given as to what to do in the event that any Agreement does contain intellectual property provisions but they do not deal with BIM. Also the intellectual property provisions where the Employer grants a licence to the Project Team Members apply even if the Agreement contains intellectual property provisions so these will still need to be deleted if the Agreement already deals with this. Alternatively, such provisions could be removed from the underlying Agreement and the parties can instead rely on those in the protocol.
Notably, the second edition still doesn’t deal with ownership of the federated model (now the Federated Information Model).
The first edition potentially undermined the BIM model by specifying that Project Team Members did not warrant the integrity of the electronic data. This has now been clarified and significantly watered down so now the Project Team Member gives no warranty that software it is using is compatible with that of any other Project Team Member. It may have been that this was the intention behind the original drafting so this is welcome clarity. Given that the software to be used is usually specified (or should be) hopefully this will not be an issue.
The second edition reflects developments in the publication of Publicly Available Standards (PASs) since the issuing of the first protocol back in 2013. Significant changes in the second edition, highlighted in the guidance notes, point to the changes in terminology that the current revision to PAS1192-2 is undergoing. The shifting of attention from models to information is welcome since it has always been the case that the central component of BIM is the efficient use of information. This is also reflected in changes in definitions such as the change from “Model” to “Information Model” and the more expansive and helpful definition of “Information Model”.
Another very welcome introduction is the integration into the second edition of the provisions of PAS1192-5. This is the PAS dealing with cyber security which actually applies to more than just BIM: it also encompasses the development of what is termed a security-minded approach to the increasing digitisation of information about our infrastructure. Whilst this will not be required on every project, bringing this into the protocol should make the parties think about whether they should be examining the project or adjacent properties to consider whether they are sensitive assets that would raise security issues. If such issues are raised and therefore there is a need to use Appendix 3 of the protocol consideration will have to be given to further amending the Agreement to align properly with the related termination clauses outlined in the protocol.
Another helpful new provision is the inclusion of obligations on the Project Team Member to attend meetings in relation to the co-ordination of project information and ambiguity, conflict or inconsistency in or between any project information. Again, helpfully the protocol states that in this respect the parties shall comply with any applicable provisions in the Agreement and sets out what to do in the absence of such provisions so as to avoid conflicts. Most Agreements will go further than the BIM protocol by looking at time and money implications and it is an issue for the parties and the approach they are taking to the project to consider whether reflecting the approach taken in most standard form contracts is always appropriate when looking at what is meant to be a collaborative process.
An interesting addition which is not specifically highlighted in the guidance notes is the insertion of references to the Asset Information Model. This is slightly puzzling and perhaps could do with some further clarification. The Asset Information Model (AIM) is to be found in PAS1192-3, which deals with the use of BIM in the context of the operational phase of assets. As such, the AIM is different in many ways to the model that is referred to in PAS1192-2 for the development and new build phase (currently referred to as the Project Information Model (PIM)) . The reference to the AIM in the second edition occurs in clause 4.1.5, where it is an obligation of the Project Team Member to provide “such information and assistance as specified in the Information Particulars in connection with any Asset Information Models at such times as required in the Information Particulars”. In the definitions section, the AIM is defined as “a maintained Information Model used to manage, maintain and operate the asset”. There is also a reference to it in Appendix 2 (Information Particulars) as the “information and assistance required in respect of the Asset Information Model” with a cross reference to clause 4.1.5.
The issue is that the PIM and the AIM are in fact different things operating in the different contexts of PAS 1192-2 and PAS 1192-3. The incorporation of references to the AIM is however not fully worked through in the protocol, which may cause some confusion in that the AIM needs to be set within the PAS 1192-3 framework in order to allow it to function properly in the protocol. Maybe an exercise that the drafters of the protocol should now undertake is to produce another version (version 2.5?) which deals specifically with operational arrangements and adopts the provisions of PAS 1192-3 more wholeheartedly. This is something we shall examine in more detail in a subsequent article.
These issues aside, the second edition of the protocol is a welcome development, providing a more flexible and integrated contractual structure governing the use of BIM on projects. It updates the first edition to take account of developments since 2013 and looks forward to the development of the widespread use of BIM at Level 2 throughout the construction sector. Allied with the recent publication of the Winfield Rock Report dealing with the legal and contractual issues arising from BIM, this should provide a firm foundation for the contractual underpinning of BIM project documentation going forward.
Article by Simon Lewis (Partner) and Vicky McCombe (Managing Associate) at law firm Womble Bond Dickinson