This article was first published in the Chartered Institute of Building (CIOB) magazine.
Collaboration seems to be prevalent in construction industry conversations at present. Dame Hackitt’s published reports on Grenfell are littered with phrases such as, “lack of coherent collaborative working” and “fragmentation in the flow of information”. Carillion’s demise brought with it references to an adversarial and flawed procurement process. The need for better management of supply chain relationships and information has been cast into the spotlight again.
Will we see more collaborative working in future? If so, what commercial steps can help ensure success?
Collaboration & Building Information Modelling – The Background
Ever since Latham’s 1994 report, efforts have been made to bring parties closer to the illusive goal of ‘collaboration’. Initially through partnering, now through BIM and other initiatives. But fragmentation and disagreement remain, even within the world of BIM.
Recently, the UK BIM Alliance published a report on the legal and contractual barriers around BIM. The authors identify challenges influenced by a number of factors. They include an evolving documentation framework and varying standards of information definition and provision.
The Contractual Framework & NEC
Most contracts make only light reference to BIM within their documentation. Though most do now at least make reference to it, NEC4 arguably goes the furthest.
NEC3 was known for its use of plain English and the phrase, ‘mutual trust and cooperation’. The courts took the phrase’s whereabouts in the contract to give it a very broad meaning. The phrase is now NEC4s opening clause. There’s been some debate as to whether the move reduces its importance. A question perhaps to be settled by a tribunal in future.
Additionally, NEC4 now has an entire option within its framework dedicated to BIM. Option X10 contains guidance on ownership of the model (X10.6). It identifies liability in the event of a fault (X10.7). It also refers to the timescales and process for implementation and acceptance of the ‘Execution Plan’(X10.4).
NEC4 refers to BIM as ‘Information Modelling’, along with a number of other slight adjustments to accepted terms. The BIM Alliance report notes much support for NEC’s use of the BIM terminology, something other contracts have failed to achieve. However, they also note that standard contracts require reference to the CIC BIM Protocol, written in 2013.
Since the CIC protocol was written, much has changed in the law and technology. Careful attention is therefore needed to ensure the contract and associated documents work together. It’s rumoured that a new edition of the protocol will be published soon, but there’s little clarity on when that ‘soon’ might be. Add to this the need to be mindful of the various standards – including PAS 1192-1 to 6, the planned ISO 19650, and other peripheral standards. There’s clear potential for confusion, and we suspect that this area will be a significant growth area for disputes going forward.
So what should we be looking out
- Information Access: The only BIM issue so far to reach a court of law in England. In practical terms, the data owner might lock down data access to other parties to the contract. It makes sense to have absolute contractual clarity on who should access information and when the access can be restricted under the contract
- Amendments: Whether to contracts or to protocols, amendments should be clear. They should be ‘back to back’ across the project – i.e. terms of the main contract should be reflected by incorporation into sub-contracts. There needs to be a clear understanding of the impact of amendments on other aspects of the contract
- Conflicts: Whether or not amendments arise, there may be conflicts in the wording of documentation. It’s important to be clear on which document takes precedence. The CIC protocol for example at clause 2, suggests the protocol will take precedence over the contract. There may be clauses in the contract that contradict this position. Careful amendments should ensure clarity in the event of a dispute
- Grasp the nettle: Conflicts between the contract documents or situations where the parties diverge from their obligations are inevitable. The spirit of collaborative working must be balanced against ensuring you do not leave yourself open to a claim if such conflicts occur
- Insurance: The insurance cover needs to be correct. This publication has discussed Integrated Project Insurance (IPI) in the past. It’s designed for collaboration and has been used on projects such as Dudley College in the Midlands. There is merit in exploring such a scheme if the parties think it suitable
- Understanding: Above all, possibly more than any other contractual arrangement, it’s crucial to understand rights and obligations. Contracts must increasingly be utilised as a daily management tool.
It appears contracts are moving in the right direction. The main forms of contract all now refer to BIM. Those such as NEC4, as well as some others, go some distance to incorporating the language of collaboration into the contract itself.
Recent events might also lead to continued recognition of the need to reduce fragmentation. One route to risk control and encouragement of collaboration might be through a pro-actively managed contract. However, the contracts (and many lawyers) appear to be playing catch-up in an evolving world. The contract is just one aspect of a required change in culture. Peter Drucker once observed, “culture eats strategy for breakfast”. Without cultural change, strategy can rarely be achieved.