JCT published a Public Sector Supplement in September 2011, and updated it in December 2011. In November 2011 the SBCC also published a Public Sector Supplement for use in Scotland. It is available for free download from the SBCC website.
The Supplements include the amendments necessary where design work and information supply is to be governed by a Building Information Management (BIM) protocol, as well as those necessary to comply with the UK government's Fair Payment Charter and Transparency Policy.
BIM amendments
In relation to BIM, the Supplements set out suggested amendments to, and guidance about, JCT and SBCC main contracts and sub-contracts:
The main contract amendments provide for the inclusion of "any agreed Building Information Modelling protocol" as a contract document, the effect of which will be that there is a duty on the Contractor to comply with the document.
There is no specific main contract clause requiring the Employer to comply with contract documents and it may be that an amendment is required to that effect. However, if the Employer has obligations within the protocol and fails to fulfil these, this could amount to an act of prevention by the Employer, which would amount to a Relevant Event and Relevant Matter (at least within the Standard Building Contract (SBC) and Design & Build (DB) forms), entitling the Contractor to the time and cost consequences of the failure.
The requirement in a BIM process for collaborative working is already covered within Schedule Part 8, Supplemental Provision 1 in the SBC and DB contracts, which requires the parties to work with each other and with other project team members in a co-operative and collaborative manner, in good faith and in a spirit of trust and respect.
Other contractual matters to consider
One aspect to consider contractually is the need for collaboration not only between the parties to the Building Contract but also between other parties involved in the design and construction process, including all design team members (Architect, Engineer, M&E Engineer and any Specialist Contractors). This should be considered in relation to other Appointments and Contracts, to ensure that everyone is subject to the same obligations.
There is currently no proposed wording for the BIM protocol and, as matters stand, this will be a matter for agreement on a project by project basis. A standard protocol may be something which develops in the future because it would bring significant benefits, not least not having to reinvent protocol drafting on every occasion of BIM being used. Protocol wording should also assist in terms of insurance, offering consistency and certainty over parties' duties and responsibilities and therefore the risk profile of those involved in the project.
In relation to any submission and checking or approval of design documents, there is already provision for this within the Design Submission Procedures in forms such as the SBC and DB, although in a front-loaded BIM process it may be that the timescales for the design submission procedure currently set are too lengthy and might require alteration.
Other documents which should be made consistent with any BIM protocol are any information-required schedules and any communications protocol.
Commentary
Given the UK government's clearly stated intention to pursue a BIM agenda and the momentum towards its use in certain parts of the private sector, BIM does appear to be more of an inevitability than a choice. The JCT and SBCC contracts becoming BIM-ready is a further move in that direction.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
