The construction and legal sectors have increasingly acknowledged the shortfall in the understanding of the legal and contractual impact and application of BIM, as highlighted most recently in the Winfield Rock Report (a report co-written by Sarah Rock and May Winfield) and subsequent discussions.
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As noted within the Winfield Rock Report, this situation has partly been the result of a lack of accessible resources aimed at those preparing and advising on contract documentation containing terms relating to BIM, who may not be very familiar with BIM processes and terminology. This often leads to generic contractual obligations, unnecessary confusion and differing contract interpretations, which in turn could ultimately lead to disputes.
Recognising this as an ongoing issue, the JCT 2019 practice note aims to provide assistance to the industry via user-friendly, digestible guidance for those using and completing the JCT 2016 suite of contracts for projects using BIM.
The JCT 2019 practice note focuses on the JCT Design & Build Contract (“DB”), the form of JCT contract that is understood to be most commonly used for projects using BIM. However, the guidance and commentary within the practice note is equally applicable to the relevant terms in other forms of JCT Contract if they are being used for projects using BIM.
The JCT 2019 practice note sets out a detailed commentary on the DB terms that are most likely to be impacted by the BIM process. It is important to note from the outset that the JCT 2019 practice note does not advocate amendment to the JCT wording itself but highlights key points to consider in preparing the contract documents and the additional aspects that may need to be captured within the BIM Protocol and the parties’ requirements/specifications and in tender documents.
To this end, the JCT 2019 practice note also contains a concise checklist for a BIM Protocol, as well as a checklist of common contents of Employer/Exchange Information Requirements to assist employers in specifying what they require from the BIM process. Recognising that many readers from the legal community may be relatively new to BIM, there is also a handy glossary of the BIM-specific terms used within the JCT 2019 practice note.
Many readers will be aware of the introduction of new BIM standards (BS EN ISO 19650:1 (2018) and BS EN ISO 19650:2 (2018)) in the UK in late 2018/early 2019. The JCT 2019 practice note takes into account BS EN ISO 19650 and is, as far as the authors are aware, the first standard form contract guidance to do so.
Some highlights from the 2019 practice note
A couple of simple, key takeaways from the JCT 2019 practice note are, first, to ensure your definitions are comprehensive and correct as regards the BIM processes and documentation, including in reflecting and/or taking into account the new terminology in BS EN ISO 19650:1 (2018) and BS EN ISO 19650:2 (2018).
Second, the JCT 2019 practice note underlines the importance of ensuring that the contract documents and the agreement and conditions of contract contain all the necessary BIM requirements, rights and duties.
From the authors’ informal day-to-day experience in this area, this is an important issue that can often be overlooked, ie BIM requirements, rights and duties featuring in non-contractual documents or not being set out by parties in writing in any detail.
This can mean that the employer is unable to obtain the benefits of the BIM process and that the obligations, liability and deliverables in relation to the BIM process are unclear.
Finally, the note emphasises the importance of having consistency between the contractual provisions in relation to BIM (ie the BIM Protocol under the JCT DB) and the rest of the contract, particularly when the contract is stated to take precedence and the importance of consistency between the technical BIM documents and processes and the contractual position.
What next
The JCT 2019 practice note can be purchased from: https://www.jctltd.co.uk/product/bim-and-jct-contracts
Note that the BS EN ISO 19650 guidance framework has issued a short document entitled “Guidance Part 1:Concepts” including easy-to-digest legal guidance in Section 3 and Annex C, with a more comprehensive document being released in coming months.
This guidance can be downloaded here. The 2019 practice note should be read in conjunction with the legal/contractual sections of the guidance framework (some of the authors have been involved in the drafting of this; ensuring alignment between the 2019 JCT practice note and the guidance framework).
It is hoped that the clear guidance in the JCT 2019 practice note and the guidance help the legal community and those involved in drafting contracts become familiar with the key aspects of the BIM process and the current standards, which can only encourage greater clarity in relation to the contractual approach to BIM.
May Winfield is associate director at BuroHappold Engineering; Andrew Croft is senior associate at Beale & Co; Dr David-John Gibbs is BIM advisory and dispute resolution at HKA
Hear the authors of the JCT practice note on BIM provide further explanation and answer your questions at an upcoming event on 2 July.
