The guidance to ISO 19650 recognises that the legal and contractual matters of BIM are in a state of flux and development…the standards are not intended to provide prescriptive direction on the composition of BIM contract documents (whether consisting of a Protocol and/or other documents) and are subject to contractual terms agreed between the parties…[5.3]
What we do know
Copyright law, contracts and insurance may all need to change to reflect BIM, especially as we move towards Level 3. Although in 2011 a UK government working group suggested little change was then needed, by 2016 David Mosey was saying this ‘does not reflect the evolving treatment of BIM in contract terms over the last five [now 8] years.’
As a bare minimum, we need clarity on the 4 essentials for BIM: collaboration, data-sharing, technology and process.
These are currently dealth with by a heady mix of:
- Project contracts
- BIM or Project Information Protocol
- Employer (or Exchange) Information Requirements
- The BIM Execution Plans
- Project Information Standard, such as ISO 19650
- Digital Plan of Work.
We do know that we don’t know what contracts really need to successfully implement BIM with everything from no change (PPC 2000 Cookham Wood), to light touch (JCT 2016 and NEC4) to fully incorporated (CIOB Time and Cost Management Contract) being promoted as ‘the solution’.
What we don’t know
Ideally, all the documents comprising each bilateral project contract should be consistent and include terms relating to culture, data-sharing, technology and process that enable the project to meet its objectives, including the use of BIM to a defined level. The reality is that the contract documents will involve multiple authors, loose wording and result in ambiguities, infelicities and inconsistencies nor do they sing in harmony (as the Winfield Rock Report noted).
Until they do we ought to know which takes precedence.
But the publishers of standard forms like JCT and NEC say their contracts take precedence and the drafter of the CIC BIM Protocol 2018 says it takes precedence! Admittedly, courts take the view that they expect the two provisions to complement each other and that only in the case of a clear and irreconcilable discrepancy would it be necessary to resort to the contractual order of precedence to resolve it.
Frankly, we need the legal guidance expected shortly to successfully implement BIM as envisaged by ISO 19650 contractually.
References: RWE Npower Renewables Ltd v JN Bentley Ltd  EWCA Civ 150; MT Hojgaard AS v E.ON Climate and Renewables UK Robin Rigg East Ltd & Anor  UKSC 59.