Assad Maqbool
On 22 September 2016, the Joint Contracts Tribunal issued its 2016 edition of the JCT Design and Build Contract.
As with the Public Sector Supplement issued in 2011 and the JCT’s practice note published in January 2016, entitled “Building Information Modelling (BIM) Collaborative and Integrated Team Working”, the new JCT DB 2016 contract continues to have “light-touch” drafting for BIM.
The amendments accept the BIM Protocol as a “contract document”. The guide that has been published with the JCT DB 2016 states that the “JCT considers that its contracts give sufficient latitude to BIM Protocols so that a conflict should not arise; in any event, it also considers that unqualified overriding provisions are not appropriate in such protocols”.
Consistent obligations
I agree that a provision which states that the BIM Protocol overrides the terms of the contract is not appropriate, because it should be ensured that terms are consistent. However, it is worth noting the reason why the CIC BIM Protocol suggests that it should prevail: so that each of the consultants and the contractor can understand and rely on the consistency of obligations of the other members of the project team.
The upshot is that any intended BIM Protocol should be reviewed for consistency with the general JCT DB 2016 terms and consistency should also be sought with the terms in appointing other members of the project team.
The JCT DB 2016 makes a new amendment such that supply of the contractor’s design documents is to be in accordance with the provisions of the BIM Protocol.
JCT Design & Build contracts have always been signed when most, if not all, of the design has been completed. It will be important to ensure that any design submission procedure is consistent with the work that has gone on in the pre-construction phase, as the pre-construction phase is not catered for by the JCT DB 2016.
It is worth reviewing the JCT’s BIM practice note from January and again noting the emphasis on collaborative working being a key to successful implementation of BIM. The practice note cites other forms in the JCT suite that might be more suitable for such collaborative working than the JCT Design & Build contract.
Overall, the BIM amendments are, like the other amendments that the JCT has made in this 2016 update, underwhelming in their substance. Most of the update has been small tweaks to wording, relatively few of which (such as the process to claim loss and expense) will have any substantial effect.
By Assad Maqbool, a partner at Trowers & Hamlins specialising in projects and construction
