This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
Constructive provided an introduction to BIM in its last blog post.
Creating a 3D representation from individual design contributions requires commonality in how project information is structured and used. This is where a BIM protocol comes in. One of the first standard form protocols comes from the Construction Industry Council (CIC). The CIC Protocol is aimed at Level 2 BIM.
It is intended to be appended to a construction contract and legally binding. The Protocol envisages only contractual relationships between the employer and each participant. The employer aside, there is no means for one participant to enforce against another. Uncertainty over professional indemnity insurers’ receptiveness to multiparty liability may have had a hand in this.
The Protocol requires the employer to appoint an Information Manager. This can be a standalone consultant or a member of the existing team. The Information Manager helps set up and manage the processes and procedures for implementing BIM.
Participants are relieved from liability arising out of transmission, copying or use or modification to their material. The Protocol also addresses intellectual property rights where not already dealt with in the agreement, with each participant granting the employer and others a licence to use its intellectual property. Given that employers expect long-term access to BIM models, it is of concern that the licence is not expressed to be perpetual or irrevocable. Neither is there any right to sub-licence it.
The Protocol assumes that one party is the employer and the other its consultant or contractor. On a design and build project, this could inadvertently lead to Protocols between the developer and its contractor and retained consultants sitting alongside identical ones between the contractor and novated consultants. The guidance notes acknowledge this but propose no solution.
The Protocol’s efforts in addressing BIM’s legal issues, which are often misunderstood, are estimable. However, as a tool for structuring project information, the absence of any criteria for model production or Levels of Detail is less explicable. While the document contains appendices where these and other technical details can be inserted this, seems a notable omission for a standard form protocol.
