Simon Fraser writes that the Government must move forward with a fairer contractual environment, which should include enabling the PWC suite of contracts to allow for the adoption of building information modelling
Civil

Large and progressive contractors are claiming significant benefits in construction management efficiency through the implementation of building information modelling (BIM) (1). While these contractors note that the cost benefits to the project budget alone justify the implementation of BIM in the field, it is also worth noting that the UK Government (in its UK Construction Strategy 2011) (2) has mandated the construction industry in the UK to use BIM on all public projects by 2016.

In Growth Through BIM by Richard G Saxon CBE (3), the current perceived leadership in the UK in advancing a BIM strategy is seen as being a key factor in promoting the recovery of the UK construction sector and in enabling UK industry to compete more effectively in export markets.

The benefits of BIM, used progressively, are stated to include reducing the cost, time and uncertainty of design, construction and the operation of buildings by making previously laborious, manual and repetitive processes quicker, automated and more accurate. Recently, following a review, the UK Government announced that BIM had contributed in saving the Government £1.7 billion in 2012 on major projects, noting that secondary-school buildings in the UK now cost 40% less through better contracting and innovation (4).

Stephen Kelly, Cabinet Office chief operating officer, noted that, “It now costs 40 per cent less to build a secondary school in the UK, through better contracting and innovation.” The important role of government was highlighted by Chloe Smith, Minister for Political and Constitutional reform, who was leading the review. She who noted that “…because we’re such a large client, we’re able to encourage the industry to do it a bit differently and we see the industry responding, with things like BIM”.

With the mandate of the UK Government now in place, it is instructive to recall that in 1994, a joint UK Government and Industry Review into inefficiencies in the UK Construction Market led to the publication of the Latham Report (5). The Latham Report concluded that poor relations and distrust amongst participants in the construction industry were endemic and the recommendations of the report focused on the management of the interfaces across the participants in the project.

The recommendations as to contract conditions were supportive of a partnering approach. In the context of the Latham Report, partnering is used as a generic term embracing a range of approaches aimed at establishing joint working and co-operation at varying degrees of formality.

In Ireland, however, in 2007, the Government introduced the public works contracts (PWC) suite for the procurement of all public sector works. After seven years of working with the PWC suite of contracts, these contracts have now been identified as a barrier influencing the prospect for recovery of the construction industry in Ireland (6). Action No. 16 of the Forfás report recommended a review of the of the current contract for public works by both Government and industry stakeholders with a view to implementing any changes required to ensure fair and reasonable terms for all parties involved.

This review is currently under way and, in submissions, Industry stakeholders have called for the PWC to be revised to include a more collaborative and co-operative approach. It is submitted that the current ongoing review of the PWC suite represents an opportunity to move the PWC suite of contracts towards more collaboration by the various parties using BIM. This paper suggests that an early step can be taken in that direction by adapting the current standard form contracts to include the CIC BIM Protocol (or something similar).

COLLABORATION USING BIM

The term ‘BIM’ is inexact, however. It is now generally taken to refer to a wide and widening suite of working methods and processes that become possible when the built environment industries move to adopt the full benefits offered by digital data and the use of artificial intelligence. As stated by Saxon, “Whilst 2D CAD allowed traditional practice to become more efficient, BIM suggests new practices altogether.” BIM is not a ‘one size fits all’ solution, but rather is the increasing use of digital data technologies with increasing levels of integration.

It represents the adoption by the construction sector, some would say at long last, of technologies that have been adopted by other industries, such as manufacturing, many years ago.

BIM is generally represented as showing a progression from Level 2 with federated, separate digital models to ‘iBIM’, a fully integrated model. This implies that each contributor’s input during the construction process is merged in a single, consistent model environment held on the web whilst, at the same time, all contributions can be identified, tracked and audited.

One of the key benefits of a BIM-enabled approach is that collaboration across the supply chain is supported and rewarded by each of the parties having a fuller and more up-to-date picture of the progress of the works. As noted by Saxon, by providing better visualisations of the works to be carried out and by encouraging co-operation and co-ordination in the field, it is also expected that the full adoption of BIM will result in far lower levels of conflict in the construction process.

In addition, the regulatory environment is also changing. The EU Procurement Directive (Directive 2014/24/2013) was published on 28 March 2014 and opens public procurement to BIM. Article 22(4) states: “4. For public works contracts and design contests, Member States may require the use of specific electronic tools, such as building information electronic modelling tools or similar….” This development can be seen as a opportunity for public clients to benefit by including BIM in the procurement process.

In addition, in the UK and Ireland, the EU Construction Products Directive (CPD) became mandatory from 1 July 2013 with the adoption of the Construction Products Regulations 2011. The CPD calls for consistent and better product information to be made available with construction offerings. As part of its policy to encourage the adoption of BIM, the UK Government has issued guidance to product suppliers on how to provide product information for use in a BIM environment.

This means that material specifications and properties can be fed directly into BIM models on a project and accurate calculations and predictions such as the temperature efficiency and carbon content of the building, as well as automatic building regulation approval, may become possible.

CONSTRUCTION INDUSTRY COUNCIL BIM PROTOCOL

The UK Government is now pushing ahead with the adoption of BIM and, in order to deal with the legal issues arising, the Construction Industry Council has produced a BIM Protocol (CIC/BIM Pro 1st Edition 2003) (7), which has been drafted to enable the production of building information models at defined stages of a project. The BIM Protocol is intended to be expressly incorporated into all direct contracts between the employer and the project team members.

The text of a model amendment, which expressly incorporates the Protocol into direct contracts, is included in the Protocol as the model enabling amendment. The Protocol creates additional obligations and rights for the employer and the project team member (the contractor), but does not create additional rights or liabilities between different suppliers.

The Protocol is divided into eight clauses and two appendices as follows:

  1. Definitions;
  2. Priority of Contract Documents;
  3. Obligations of the Employer;
  4. Obligations of the Project Team Member;
  5. Electronic Data Exchange;
  6. Use of Models;
  7. Liability in Respect of a Model; and
  8. Termination.

Appendix 1: Levels of Detail and the Model Production and Delivery Table; and

Appendix 2: Information Requirements.

Clause 1 of the Protocol sets out ‘Definitions’. This defines terms such as ‘Federated Model’, ‘Information Management Role’, ‘Information Manager’, ‘Information Requirements’, ‘Level of Detail’, ‘Material, Model’, ‘Model Production and Delivery Table’, ‘Permitted Purpose’, ‘Project Team Models’, ‘Protocol’ and ‘Specified Models’. For example, ‘Model’ is defined as “a digital representation of part of the physical and/or functional characteristics of the project”.

Given the possible uses of data-rich BIM, the Protocol seeks to address areas of concern for information providers. The Protocol uses a general concept of ‘permitted purpose’to define the licensed uses of the models. The Protocol aims to reduce the need for separate electronic data exchange agreements between the project team members by addressing the principal risks associated with the provision of electronic data, in particular, the risk of corruption, following transmission.

The Protocol defines the models that are covered which are scheduled in Appendix 1, The Model Production and Delivery Table (MPDP)’. The Protocol requires the employer to appoint a party to undertake the information management role’. The principal responsibilities of the information manager can be summarised as:

  1. Managing the processes and procedures for information exchange on projects;
  2. Initiating and implementing the project information plan and asset information plan;
  3. Assisting in the preparation of project outputs, such as data drops; and
  4. Implementation of the BIM protocol, including the updating of the MPDP.

The ‘information requirements’ (IR) have been included at Appendix 2 of the Protocol so that project-wide information requirements can be expressly incorporated into all project team members’ agreements. It is the responsibility of the information manager to agree and issue the IR, which should be prepared before the agreements are concluded.

The Model Production and Delivery Table is a key document, as it both allocates responsibility and preparation of the models and identifies the ‘level of detail’(LOD) that models need to meet at the project stages or data drops stated in the table. The Protocol also defines the priority of contract documents and states that, in the event of a conflict or inconsistency between the terms of the Protocol and any other documents contained in and/or forming part of the agreement, the Protocol shall prevail.

The Protocol provides for the granting of sub-licences (and sub-sub-licences) to sub-contractors for the ‘permitted purpose’ related to the Project.

BIM IN IRELAND

Public contracts in Ireland are now procured under the Public Works Contracts (PWCs) suite introduced in 2007. Whilst this suite of standard contracts does provide for electronic communications and the use of software, it is primarily designed to facilitate traditional contractual relationships. Moreover, the PWC suite of contracts have been heavily criticised due to the fact that, far from placing risk on the party which is best placed to manage it (as was the stated intention), they have moved as much risk as possible away from the Employer and onto other parties (largely the Contractor).

In so doing, the PWC suite of contracts has done nothing to assist the recovery of the construction sector of the Irish economy and indeed, as noted above in the Forfás Report, many would say that the PWC suite of contracts has contributed to continuing recession in the industry.

Many believe that the PWC suite of contracts has not delivered on the promises made at its introduction. For example, it was initially suggested that the new suite of contracts would improve outcomes by requiring the employer to clearly set out its requirements prior to contract. In the event, in many cases the employer does still not provide full information and the contractor is left to deal with such shortfalls in information.

In 2007, this author suggested that the PWC suite of contracts shifted the contractual balance too far in favour of employers, could lead to increased confrontation and ultimately would not be to the advantage of employers or contractors (8, 9). It is suggested that this prediction has been borne out by the experience over the intervening years. In addition, it was noted that the PWC suite of contracts contained none of the fundamental features of partnering, as adopted in the UK.

With the stakes being very high as, for example, set out by Saxon, the question arises as to whether the adoption of BIM in Ireland can be facilitated within the PWC suite of contracts, perhaps with the use of a protocol such as that now proposed in the UK? In this regard, it is submitted that anything that contributes to the more effective and efficient delivery of projects is to be welcomed and may give substance to the somewhat weak terms of PWC sub-clause 1 – ‘Co-operation’.

In their paper entitled ‘Implementing Building Information Modelling in Public Works Projects in Ireland’ by McAuley, Hore and West (10), the authors recommend that the Irish Government moves towards the legal mandating of BIM. The authors noted that the Government Construction Contracts Committee (GCCC, now PWC) suite of contracts “…are not set up to promote collaboration and effectively through the transfer of risk create a hostile environment”. It was suggested that a “….collaborative approach can be achieved through the re-drafting of the GCCC suite of contracts to include use of BIM technologies”.

The paper by McAuley et al suggests that the most effective way of dealing with the barriers to BIM are to have “…..collaborative, integrated project delivery contracts in which the risks of using BIM are shared among the project participants”. The key legal areas to be addressed are identified as:

  1. Digital data protocols;
  2. Co-ordination and reliance;
  3. Project responsibilities and risks;
  4. Copyright/ use of documents;
  5. Contractual privity; waivers and indemnities.

This author submits that all of the above key legal areas are effectively dealt with in the Protocol, for example, point four above is dealt with in Clause 6 (Use of Models) of the Protocol and elsewhere therein. It is therefore not necessary to completely re-draft the PWC suite of contracts. On the contrary, BIM can be implemented within the existing PWC suite of contracts (including the PWC sub-contracts and conditions of engagement of specialists) by way of minor amendment and by appending the CIC Protocol or a similar document. This is of particular relevance given the ongoing review of the PWC suite of contracts.

The PWC suite of contracts were conceived and drafted in a completely different economic environment and their adoption may be seen as a lost opportunity to move towards a more collaborative model of working in the construction industry. It is submitted that the adoption of BIM and other collaborative tools now could address some of the difficulties inflicted on the industry and the Irish economy by the PWC suite of contracts.

RECOVERY OF THE CONSTRUCTION INDUSTRY

The incorporation of the CIC Protocol (or something similar) within the PWC suite of contracts could facilitate a move in this direction sooner rather than later and allow the contractual risks to be allocated and managed in a more reasonable manner. Such a move may also assist in the recovery of the Irish construction industry and may give the industry a competitive advantage when competing for international business.

As the sponsors of the PWC suite of contracts and the ultimate employer for the vast amount of civil engineering and building work currently being tendered in Ireland, the role of the Irish Government is key. For example and as a first step, BIM competence could be mandated as a pre-qualification requirement on particular, appropriate public sector tenders.

As a small, open, innovative economy with a strong ICT sector, the adoption of a BIM approach in Ireland may stimulate the Irish economy while also finally enabling the government to realise the benefits originally promised by the PWC suite of contracts.

It is submitted that there is now an opportunity for the Irish Government to consider the hard experiences of the seven years since the implementation of the PWC suite of contracts and to move forward with a fairer contractual environment which will be of benefit to the economy as a whole. The changes should include enabling the PWC suite of contracts to allow for the adoption of BIM.

Simon Fraser qualified with a civil engineering degree in 1983 from Trinity College and has since gained master of science and master of business administration degrees. He is a member of Engineers Ireland and has extensive professional commercial experience, having worked in the civil engineering sector with Golder Associates and in the IT sector with Fujitsu. Fraser is now applying his experience to the area of law and in particular the application of law to the construction industry in Ireland as a solicitor with Hussey Fraser Solicitors, specialising in providing a comprehensive legal service focusing on the construction industry. 

References

(1)   Irish Building Issue 2 – 2014;

(2)   UK Government Construction Strategy, Cabinet Office, Government Publications, 31 May 2011;

(3)   Saxon CBE, Richard. (2013) Growth Through BIM, Construction Industry Council, 25 April 2013;

(4)   Construction News, 4June 2013;

(5)   Constructing the Team: Final Report of the Joint Government and Industry Review of Procurement and Contractual Arrangements in the UK Construction Industry (HMSO 1994) (ISBN 01175299 4);

(6)   Ireland’s Construction Sector: Outlook and Strategic Plan to 2015, Forfás, (July 2013, page 41);

(7)   Building Information Model (BIM) Protocol, CIC/BIM Pro first edition 2013;

(8)   Fraser, S. Does Partnering Offer a Solution to the Public Works Contract Dilemma?, Engineers Journal, Volume 61: Issue 7/September 2007;

(9)   Fraser, S. New Forms Shift Balance in Public Works Construction Contracts, Engineers Journal, Volume 61: Issue 6/ July/August 2007;

(10)McAuley, B., Hore, A.V and West, R. (2012) Implementing Modelling in Public Works Projects, Proceedings of the 9th European Conference on Product and Process Modelling, Reykjavic, July 25 – 27 2012.

http://www.engineersjournal.ie/wp-content/uploads/2014/07/BIM-1024x739.jpghttp://www.engineersjournal.ie/wp-content/uploads/2014/07/BIM-300x300.jpgDavid O'RiordanCivilconstruction,contracts,government,Ireland,United Kingdom
Large and progressive contractors are claiming significant benefits in construction management efficiency through the implementation of building information modelling (BIM) (1). While these contractors note that the cost benefits to the project budget alone justify the implementation of BIM in the field, it is also worth noting that the...