BIM, procurement and contracts - time for a rethink?

Cookham Wood, the location of a UK government trial project case study.

Is BIM a parallel digital universe or are there links to the selection of procurement models and the impact of contract terms? DAVID MOSEY investigates.

Recent research led by the King’s College London Centre of Construction Law has examined how clients such as Crossrail, UCLH and UBS structure their procurement and contracting processes so as to get the best out of BIM.

For example, UK Government’s “Cookham Wood” Trial Project case study showed the benefits generated when BIM was combined with the recommended “Two Stage Open Book” procurement model and with early team-work under a collaborative contract. These included 20% capital cost savings agreed by all team members ahead of start on site, namely a cost of £2,332 per square metre against a baseline benchmark of £2,910 per square metre.  

Using BIM at the procurement stage the main contractor and its specialist sub-contractor submitted a precast volumetric cell proposal in response to the Ministry of Justice brief, which was then developed by the wider design team.This led directly to a time saving of six weeks and a cost saving in overheads of £85,000. 

Other Cookham Wood innovations driven by the combination of BIM with Two Stage Open Book included:

  • the use of solid precast floor slabs in place of pre-stressed floor slabs, resulting in a time saving of 12 days;
  • the creation of more robust lighting in the education block through a bespoke solution proposed by mechanical and electrical sub-contractor which also created a significant cost saving;
  • joint development by the mechanical and electrical consultant and the services sub-contractor of service ducts and cell risers that can be serviced by repair and maintenance engineers more quickly and reliably from outside the cells.

The King’s BIM research team have interviewed 40 specialists engaged on leading BIM-enabled projects and have analysed evidence of links between successful implementation of BIM and the use of particular procurement models and contract terms. 

This work was against a backdrop of mixed message such as the UK Government Construction Clients Group guidance in March 2011 that “Little change is required in the fundamental building blocks of copyright law, contracts or insurance to facilitate working at Level 2 of BIM maturity”. While contract drafting bodies at first accepted this guidance, in 2013 the Construction Industry Council published its BIM protocol containing a number of far-reaching contract amendments.

Publication of the CIC Protocol provided a valuable bridge between anxious designers and the contractual challenges created by BIM. But among the 40 King’s interviewees only 12% mentioned using the CIC BIM Protocol, even though all of them recognised the importance of creating procurement and contractual links to BIM.

The Cookham Wood team did not use any BIM protocol at all and instead adopted the multi-party PPC2000 contract form.  Similarly, the Australian Department of Defence is adopting guidance, provided by the Strategic Forum for the Australasian Building and Construction Industry, suggesting that BIM should be combined with a new procurement model known as “Project Team Integration”. Rather than a separate protocol, this uses a multi-party contract designed to enable early collaborative working with the whole supply chain , including facilities management professionals.

Not all BIM legal issues are resolved through the choice of procurement model, for example intellectual property rights where the CIC BIM Protocol has created a consistent and balanced approach among a set of two party contracts. However, this work needs to be viewed alongside the protocol’s various limitations on liability, which were intended to give designers the confidence to work through BIM but which may now be less attractive to clients. These limitations may be one reason for the JCT 2016 Practice Note recommending that, in the event of conflict, their contract terms should take precedence over any protocol.

As we assess the impact of the April 2016 public sector BIM mandate, is it time to consider how the CIC BIM Protocol can be updated? For example, can we remove the disclaimer of liability for electronic data exchange, and the diluted duty to exercise only “reasonable endeavours” in delivering BIM models? And, in maximising the benefits of BIM, could a revised protocol provide guidance on links to recommended procurement models, including the importance of engaging with those who will manage and repair the completed project?

All these issues deserve serious consideration and are addressed in the King’s research report “BIM, Procurement and Contracts”, released in draft at a conference on Friday 6 May so that feedback can be included in the final published version. 

Professor David Mosey PhD is Director of the Centre of Construction Law and Dispute Resolution at the Dickson Poon School of Law at King’s College London.