Building Information Modelling (BIM) and JCT

BIM can trace its roots back to the 60’s in terms of a concept, the idea then developed in the 70s. However, this was in an era whereby drafting of construction drawings was almost entirely done by hand. It wasn’t until the computer boom of the 1980’s that allowed the development of BIM to take off and until the early 90’s that work started on producing models but even then it took until the early 2000’s for projects to start using BIM.

The idea of BIM is a fantastic one, a situation whereby each building constructed could be stored as an electronic 3D model, including exploded diagrams of connection points and interfaces that would allow the building operator to examine in the event of an issue. They could look up the manufacturer of the parts affected, the part number, the part size, and when it was made such that contact could be made and you can easily replace and deal with any building issues. This standardisation could reap huge benefits in terms of the economies of scale savings and real life studies of how each component performs in-situ, enabling robust performance of parts and materials.

However, in an industry that is still very much focused on awarding contracts to the lowest bidder and then making value engineering ‘savings’ once on site, where does the money come from to undertake all this research and development? Perhaps this is reason the uptake for BIM has been so slow. Most would agree that there are significant gains to be had, but in a world where technological advances are increasingly rapid, there is maybe reluctance as an organisation to make an investment in software that could prove to be obsolete before you have made a full return.

What is BIM and why is it needed?

In a bid to remain at the forefront of the global construction market, in 2011, the UK Government Construction Strategy published a mandate which stated it will require fully collaborative 3D BIM as a minimum by 2016. What this meant was that BIM Level 2 was required for all government funded construction projects by 2016. The current standard BIM levels are 0, 1, 2 and 3 but there is more being done to realise levels 4, 5 and 6.

BIM Level 0

Essentially this is zero collaboration between the contracting parties, 2D CAD drawings are issued in hard copy, they are unamendable and there is no sharing of design information. For anything other than very minor domestic works this is not practised in the industry any more.

BIM Level 1

There is some 3D CAD being work developed but it is usually kept off line from others. The modelling is typically used to safe guard each parties design, say the structural engineers design for example. It is not widely shared and may be in a different format to their peers on the same project. Data is shared from a common platform that can host the upload of specialist subcontractor detailing whilst operating as a platform that draft designs are issued for comment and final designs are issued as working drawings.

BIM Level 2

A greater level of collaboration takes place compared to level 1 as the various project stakeholders will be using 3D BIM models still but they will also be sharing the models between themselves to check for clashes. This is also known as a federated model. The design itself will be shared through a common format such as Autodesk. Whilst the BIM model software may not be the same the files are able to be accessed by the other parties.

As the government has mandated BIM Level 2, there are standards that further describe how this will be achieved. PAS, or Publicly Available Specification, reference 1192-2 and 1192-3, which were developed to describe the conditions that need to be met in order for BIM level 2 to be reached. PAS 1192 came into force in 2013 but has more recently been replaced by BS EN 19650:1 and 19650:2 with the final version being introduced in January 2019.

BIM Level 3

This can be considered as BIM on full collaboration mode, different to Level 2 in that a single shared BIM model is used by all contract stakeholders who have unlimited access to the model. There are no conflicting data issues between differing software enabling full integration. The model will be used for all stages of the project lifecycle, including allowing the building operator and their staff full use and training around the model. They will be able to make decisions about how to regenerate the building and even understand the best way to demolish the building to make way for the replacement.

In terms of further levels, Level 4 will be the model but with the inclusion of time and scheduling information. Level 5 will include cost information into the model whereas level 6 will include facilities management and data. It is widely accepted that full uptake across the industry to level 2 will take time but the vision is now clearly understood and the benefits are obvious.

What value does it add?

For a long time now the construction industry has been challenged to introduce more standardisation into designs. BIM, once developed, will allow more off site prefabrication and pre-assembly of components, enabling productivity boosts. The time taken to re-work changes on site has a negative impact on cost and schedule, but with the design finalised and built in 3D before works start, this will allow greater efficiency.

On most projects there will be architectural detailing drawings, structural engineer’s drawings, and specialist sub-contractor drawings. The principle designer will lead on collating this information for the client in the early stages of the project, but assuming a design and build is taken up, the contractor will take ownership of this. In the event of a clash between the designs, this will probably not materialise until the works are progressing on site and materials have already been manufactured or cast on site. This is catastrophic for a project, as they may have to stop works, incur the cost of redesign plus the costs of alterations and the downtime whilst a solution is found. Therefore, to have the option of a virtual as-built model that could identify any clashes before mobilising to site is very attractive.

Notwithstanding the above, once you have more connectivity between the office, site, then through the use of applications, should a query arise on site as to a particular connection detail, you could pull up the detail on a smart phone and look at the exploded view instantaneously.

Is it mandatory?

The requirement for all government led projects to be BIM Level 2 by April 2016 is backed up by mandate from the government. Whilst a mandate is not enforceable through law, as it is not backed up by legislation passed through parliament, it still means that you will be held accountable where efforts are not made to meet this mandate.

For developments in the private sector, they do not fall under the BIM mandate but they do run the risk of falling behind the public sector with technological advances that could lead to the efficiencies noted above.

BIM, the CIC and JCT

The Construction Industry Council (CIC) refers to itself as the representative forum for professional bodies, research organisations, and specialist business associations in the construction industry. Following the government mandate in 2011, the CIC set up a BIM Task Force to support with delivering on those objectives. Subsequently the CIC produced a ‘BIM Protocol’ in 2013 which was drafted for use on all common construction contracts and supports BIM Level 2.

Amongst others points in the BIM Protocol, it includes direction on obligations, liabilities on the parties, common naming standards with clear actions and deliverables.

Following the governments mandate in 2011, JCT issued a Public Sector Supplement in the same year for use with their design and build contract. This was followed up by JCT with their 2016 Practice Note titled “Building Information Modelling (BIM) Collaborative and Integrated Team Working” for use with their popular JCT Design and Build Contract.

JCT remained concerned that simply inserting or referring to the CIC’s BIM Protocol in their contracts is too ambiguous in case of conflicting terms, even allowing for a statement that one should override the other in the event of a clash, hence issuing their own supplement. However, there is integration between the two in the 2016 practice note, for example, the supply of design information is to be in accordance with the provisions of the BIM Protocol.

JCT’s 2019 Practice Note “BIM and JCT Contracts”

JCT introduced a new practice note in May 2019, which supplements the existing 2016 version. The idea of the 2019 practice note is that it aims to provide assistance for those drafting, using, and completing works under the JCT suite of contracts. It does focus on the design and build contract for obvious reasons, but the notes and guidance are applicable to all forms of JCT contract.

The practice note provides a detailed commentary of the contract terms that are affected by the BIM process without actually advocating alterations to the wording. It highlights the points those drafting contracts will need to consider and the additional items that need to be highlighted as part of the BIM Protocol when issuing tender documentation.

The reticent approach to making wholesale changes to contracts is driven by the perceived lack of understanding around the legal obligations and liabilities imposed by the use of BIM, hence the 2019 practice note should be seen as a practical guide. It is split into two parts, A and B. Part A reflects upon the contractual provisions that could be affected or are relevant should BIM be introduced, as noted above, and Part B acts as a checklist for items such as how to manage the information exchange, what to specify in terms of requirements for the BIM process, a glossary of terms, and of course the new standard BS EN 19650.

To expand further on Part A, it notes the parties will need to include a BIM protocol in the contract document but without actually stating they must simply insert the CIC version. The JCT practice note leaves this for the contracting parties to decide on the version and format that best suits the project from a commercial and technical perspective.

However, if a BIM protocol is chosen and there should later be a conflict between the main contract terms and the protocol, the JCT terms are to take precedence. This is different from the CIC version which overrides the standard terms and conditions in the event of a conflict.

Further points for consideration include a review of the design submission procedure e.g. in the JCT Design and Build contract there is a defined design submission procedure, but if using a BIM protocol this is different, so the practice note is around the contract drafter ensuring the contract is set up to perform as expected.

Other points for consideration in the practice note also include how changes are to be managed as the relevant events under JCT do not include BIM, therefore what should happen if one party affects the other and how will this be treated, valued, and agreed? Also, what happens once the project is complete i.e. the process for completion may be set down in the contract, but how is this affected by the BIM protocol and what do you require in order to grant completion?

Interesting Case Law

The level of data retention is clearly high when using BIM and who holds this information is vital for project delivery. In the case of Trant Engineering Ltd v. Mott MacDonald Ltd (2017) a dispute arose whereby Trant did not sign the contract, leading to them refusing to acknowledge and pay changes notified by Mott MacDonald. Consequently, Mott MacDonald withheld access to the design information and also claimed there was no contract and duly suspended performance.

However, the contract, as drafted, included a clause where access to the design was granted if the right of suspension was invoked due to non-payment. A judge subsequently considered it fair and reasonable to grant a temporary injunction ordering Mott MacDonald to grant access.

In this case it is clear that you should always check the contract on who retains the rights to the data that feeds into the model, including intellectual property rights, before the contracts are finalised and agreed in case of a dispute.

Image credit: iStock.com/Bim

About Dean Suttling

A member of the Royal Institution of Chartered Surveyors, Dean has twenty years of experience in commercial management and quantity surveying, undertaking roles for contractors, clients, and consultants.