The existing industry standard form of contracts are evolving in response to the growing use of BIM within contracts. A summary of the key contracts is listed below:-
|Joint Contract Tribunal||Initial provisions and amendments included in 2011 Public Sector supplement, further updates included within 2016 JCT Design & Build Contract.|
|Scottish Building Contract Comittee||Initial provisions and amendments included within SBCC 2011 Public Sector Supplement. Forthcoming update to be published to align with JCT 2016 update.|
|New Engineering Contract||A guide to incorporation of BIM into NEC3 suite of contracts issued in April 2013.|
|Hub Framework Standard Form Contract||Forthcoming update and suggested amendments to be developed and issued for use.|
Joint Contracts Tribunal (JCT)
The JCT was the first contract publishing body in the UK to refer to BIM, in their 2011 Public Sector Supplement, which included amendments to enable BIM. The JCT has not published amendments for private sector contracts, although a recent update was issued in 2016 suite of JCT contracts.
One area of particular uncertainty in relation to JCT contracts is where exactly the applicable BIM protocol should be contained within the contract documents, as this could affect the priority of terms should the protocol conflict with another provision of the contract. Consideration should be made to this point.
The recently released 2016 version of the JCT Design & Build contract makes reference in the Contract Particulars to which protocol is to be used (if applicable), and makes the identified protocol one of the Contract Documents, which the Contractor is under a duty to comply with. It should be noted however that, without specific amendment to the contrary, the Employer (in contrast to the Contractor) is not under any similar explicit obligations regarding compliance with the protocol.
Scottish Building Contract Committee (SBCC)
In November 2011 the Scottish Building Contract Committee (“SBCC”) issued a ‘Public Sector Supplement for use in Scotland’ to enable BIM on public sector contracts using the SBCC forms of contract. The supplement sets out suggested amendments to the SBCC form of main contracts and sub-contracts. The main amendment is the provision of “any agreed Building Information Modelling protocol” as a Contract Document, which will mean the Contractor is under a duty to comply with it. This approach is broadly consistent with the JCT’s approach, and consideration to should be made to priority of terms. The SBCC continue to develop a further update to align with the JCT 2016 update.
New Engineering Contract ( NEC)
The NEC published a guide to incorporation of BIM into the NEC3 suite of contracts in April 2013. This guide includes sample clauses to incorporate a BIM protocol into the Engineering and Construction Contract (ECC), Engineering and Construction Subcontract (ECS) and Professional Services Contract (PSC) (the other forms of NEC3 contracts being considered too small to be suitable for BIM). Importantly, the sample clauses only work with the CIC BIM Protocol, as they make certain parts of this specifically named protocol ‘additional conditions of contract’, and certain other parts ‘Works Information’ in the technical schedules.
They also introduce two new compensation events related to the protocol – one being actions of the Employer revoking a licence for IP/software required by the protocol, and the other being events beyond the Contractor’s reasonable control which prevent him from complying with certain elements of the protocol. These amendments go a step beyond those of the JCT, but are in keeping with the overall aim of the NEC3 suite to encourage collaborative working and minimise disputes.
The guide also includes some practical advice on how a BIM protocol would work in a NEC3 contract, for example advising that technical requirements relating to BIM should be set out in the ‘Works Information’ or the ‘Scope’. The guide further advises that any new rights or liabilities of the parties arising from the use of BIM should be addressed in bespoke ‘Z clauses’ (examples of these are not provided). There is no drafting suggested for using any protocol other than the CIC BIM Protocol.
Hub Standard Form Contract
Currently there is no standard amendments for the incorporation of BIM for either the DBDA or DBFM form of contract. However it will be possible to include the BIM Protocol within the Authority Construction Requirements and thereby passing a duty to comply to the delivery partner.