Using the BIM Protocol – 2nd Edition

The Construction Industry Council ("CIC") issued the second edition of its BIM (building information management) Protocol in April.

What is BIM

In a nutshell, Building Information Modelling ("BIM") is an approach to construction procurement under which contractors and consultants are required to work collaboratively to deliver projects efficiently. It is a software solution to designing buildings. On a BIM enabled project, design consultants upload their work to an electronic common data environment, which creates a federated model of the proposed project, storing all relevant design information in one place and generating graphical models of the development.

In principle, a BIM enabled project should benefit from no loss of information between stages; once information is in the common data environment, it should stay there and be capable of being expanded on as the design is developed and the project is built.

The potential benefits of using BIM are such that it has, for some time, been mandated for use on UK Government projects and an increasing number of private developments are embracing BIM.

First published in 2013, the BIM Protocol was published in response to the UK Government's BIM strategy. It sets out the contractual relationship between the Employer and the Project Team regarding contribution to the BIM Model.

Changes in the second edition

The Second edition introduces a raft of changes, including the following:

• Introducing a responsibility matrix setting out responsibility between the stakeholders for model or information production;
• A change in the approach to whether the Protocol or contractual terms will take precedence;
• A new approach for co-ordinating information and resolving inconsistencies;
• A new process for sharing and publishing information to the common data environment;
• A requirement to share specified information in accordance with a programme set out in the responsibility matrix;
• A change to the copyright provisions; and
• New, more robust security requirements.

The list above is not exhaustive but, for those used to working on BIM-enabled projects, it should be apparent straight away that the new protocol includes a reasonable amount of new, or amended, procedure for managing BIM. Recently, practitioners in the construction industry have been getting used to the major and minor differences between working with a 2011 JCT contract and the 2016, or moving from NEC3 to NEC4 and, in much the same way, some getting used to the second edition of the Protocol will be required.

Remember the Protocol is a contract

Priority of terms

Parties should bear in mind that the Protocol forms part of the professional appointments and building contracts with those parties contributing to the BIM Model. Employer's should therefore ensure that they are happy with the terms and conditions that the protocol imposes.

The first edition of the BIM Protocol included a copyright clause that expressly overrode the terms of the underlying contract and imposed a copyright licence that would be off-market for a development-financed scheme. On the topic of copyright, the second edition corrects this issue and honours the commercially agreed terms of the underlying contract but there remain other clauses that are drafted to take precedence over the underlying contract. These are generally clauses that are BIM-specific but parties should be mindful that anything they agree expressly in the terms and conditions could be inadvertently overridden if the BIM protocol is not integrated with care, or an appropriate amendment to the protocol made.

Technical detail

As touched on above, the BIM Protocol requires a fair deal of technical input at the outset. It requires an agreed responsibility matrix, including a programme for the release of technical information, the Employer's information requirements, an execution plan and a raft of other information.

The CIC advises that this complete information should be agreed and appended to the contractual documents in order for the Protocol to be properly incorporated. Subsequent updates to any of that information are likely to be treated as new instructions under the relevant contract, which generally translates to an entitlement to additional fees.

Other considerations for using the BIM Protocol

Who controls the protocol?

As reported in a previous edition of Under Construction, we have already seen the first dispute where the person controlling the BIM model withdrew access following an unrelated payment dispute. When using BIM, Employers should give thought to whether such matters should be specifically allowed for to avoid potential disputes.

Is your model future-proof?

One of the purported benefits of using BIM for your project is that not only can it serve as the home for the design as it is being developed and then built, but also for use during the operation of the asset – it is likely that when the project team have moved on to pastures new, the information in the model is still needed for the day-to-day management of the property.

This could be an invaluable tool but, with one eye on the future, Employer's should be mindful that common data environment is a software solution, hosted by a third party. If that third party was suddenly not there to host the information, would your scheme still hold all the information needed to operate and maintain the property?

With this in mind, Employers may wish to give thought to whether uploading information to the BIM model is sufficient to replace more traditional obligations to share hard and/or soft copies of documents for their records.

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