This presentation considered the function of BIM protocols in project documentation. It will consider the relationship of the BIM protocol with other project documentation such as construction contracts and consultant appointments. It will also consider the relationship of the BIM protocol with other BIM specific documentation such as Pre and Post Contract BIM Execution Plans.

1. BIM Protocols
Tim Willis
Presentation ————September 2017

2. BIM: BIM Protocols
● What are they ?
● Do we need them ?
● What should they contain ?

3. BIM protocols
● Projects without BIM define, share and develop
information about
• the design, specification / methods of construction,
and information about the building as constructed
● Existing standard forms of appointment and
construction contracts manage that process
● If we add BIM do existing standard forms manage that
process ?
● What do we mean by BIM ?

4. Building Information Modelling (BIM)
● RIBA and others have adopted the following definition:
“Building Information Modelling is digital representation
of physical and functional characteristics of a facility
creating a shared knowledge and resource for
information about it forming a reliable basis for
decisions during its life cycle, from earliest conception
to demolition.”
● NOTE very general –it says nothing about the use of
DATA apart from it refers to information about a facility
● Information is to be used across the life-cyle of the
facility

5. BIM level 2
PAS 1192-2 2013
Fundamental principles for Level 2
a) Originators produce definition information in models
they control
b) Clear definition of employers information
requirements [EIRs]
c) BIM execution plan
d) Provision of a single environment to store shared data
e) Data delivered to client in COBIe format

6. BS1192:2007
PAS1192-
2:2013
PAS1192-
3:2014
BS1192-
4:2014
BIM Protocol Information
Requirements
Information
Management
PQQ
PAS1192-
5:2015
British Standards BIM Overview

7. What Protocols are there ?
● The CIC BIM protocol ?
● Other protocols;
• AEC (UK) CAD & BIM standards
• Client specific protocols
• The American Institute of Architects’ E-Series documents, which
include its E202-2008, Building Information Modeling Protocol
Exhibit and E203–2013, Building Information Modeling and Digital
Data Exhibit.
• ConsensusDocs’ Document 301 - Building Information Modeling
(BIM) Addendum
● All of these exist and are in the market place there is no one standard form.
● Why ?

8. Background and current trends
● Many employers do not specify “information requirements” or
understand the purpose of BIM
● FM and asset management is still dealt with in isolation of
the construction phase
● Tier 1 suppliers do not limit their process to BIM level 2
● Where the BIM process is defined by tier 1 contractors they
are not always responding to an employer demand
● The CIC protocol is not adopted in many cases
● There is no standard document that is used for BIM enabled
contracts
● There is considerable diversity of approach among the
existing standard forms of contract as to how BIM is
documented and the extent to which existing documentation
needs to be modified for the process

9. Revised CIC protocol
● The current protocol has not gained wide industry support
• Risk transfer for failure to deliver BIM is too limited, in
particular liability it may cause for delay to a project
• The requirements in respect of the Employers
Information Requirements cannot be met at the tender
stage on many single projects
• Frameworks can deal with BIM issues without a protocol
as the issues can be addressed and developed in the
context of the framework
- see FAC-1
• The role of the BIM manager – possibly does not reflect
relationship between data and design
• Data corruption and data management roles not
adequately dealt with

10. Research by the Centre for Construction
Law and Dispute Resolution at Kings
College
● “ENABLING BIM THROUGH PROCUREMENT AND
CONTRACTS A Research Report by the Centre of
Construction Law and Dispute Resolution, King’s
College London”
● https://www.kcl.ac.uk/law/research/centres/construction
/enabling-bim/ebimtpac-form.aspx.
● Published July 2016 – research a combination of
interviews / workshops and conference.

11. Towards BIM Level 3
● Interviewees were cautious about progression to BIM Level 3
and considered that more work needed to be done first to
embed BIM Level 2.
● Digital Built Britain describes incremental progression in the
development of BIM where at Level 3A: “Collaborative
models of working, facilitated by data, will permit greater
engagement with lower tier suppliers.”
● The research concludes “recommendations in this report
offer an approach to contracts and procurement that will
assist in achieving that goal”.
● BUT linking whole life performance and asset management
to the construction phase is still a real challenge. It requires
more than just better collaboration but a client and industry
re-alignment of procurement drivers.

12. Current Standard Contract /
Appointments
● In relation to building contracts:
● The JCT’s Public Sector Supplement (the Supplement)
was published in September 2011 and updated in
December 2011
● BIM drafting is now included in the JCT 2016 Editions

13. JCT 2016 Design & Build
● Drafting refers to BIM Protocol. It is a separate contract
document and not part of the Employer’s Requirements (
These are the employer’s design specification in a non-BIM
project)
● Contractor’s Design Documents are expanded to include any
other design documents or other information to be provided
by the contractor under the BIM protocol
● The Design Submission procedure is as specified in the BIM
protocol, or where that is not applicable as set out in
Schedule 1
● The notices and communications protocol is to be set out in
the BIM protocol – the form, content or medium for storage
and transfer of documents should be set out in the BIM
protocol

14. JCT 2016 Design & Build
● The IP licence is limited
● The licence is subject to the Contractor having been
paid in full
● Transfer of information to the Employer – “ As Built
Drawings” – definition now includes “ design
documents or information to be provided by the
Contractor under the BIM protocol.”
● No drafting about access and use of data and no
express reference to models. Must be covered in the
protocol or additional conditions

15. ● The NEC3 April 2013 editions include a document,
NEC3: how to use BIM with NEC3 Contracts
• gives general guidance on using the NEC3
contracts on a BIM-enabled project; and
• includes suggested “Z” clauses for incorporating
the CIC BIM protocol into the Engineering and
Construction Contract (ECC), Engineering and
Construction Short Contract (ECS) and
Professional Services Contract (PSC).

16. Standard Building Contracts
● NEC4
• BIM now introduced as a secondary option –option
X10
• Information Model Requirements
• Information Execution Plan
• Clauses dealing with
- Collaboration
- Early warning
- Information Execution Plan
- Risk allocation
- Use of the Model
- Liability

17. Standard Building Contracts
● The Association of Consultant Architects’ PPC2000 contract
has been used in one of the government’s trial projects at
Cookham Wood prison in Kent, where BIM level 2 was
implemented. According to press reports, the government
was able to implement BIM level 2 without making any
amendments to the contract.
● The Chartered Institute of Building’s (CIOB) Time and Cost
Management Contract, 2015 edition (known as TCM15) is
intended to function in a BIM-enabled environment. It is a
revised edition of CIOB’s Contract for Use with Complex
Projects, 2013 edition (CPC 2013), which contained similar
provisions relating to BIM. This standard form contract is not
yet widely used in the UK construction and engineering
market although it is still in its infancy and some
commentators have indicated that they have found its
approach to BIM useful

18. Standard Building Contracts
● FAC 1 – a framework contract – guidance suggests how to
include BIM in the framework – no specific BIM drafting
● TAC 1 a term alliance contract
• does not contain any specific BIM drafting but defines
BIM “ building information modelling”
• guidance notes set out where BIM should be addressed
- Agreed software
- Integration of BIM documents into term documents
and orders
- Timetabling BIM gateways and deadlines
- Flexibility of BIM contributors
- Direct mutual IP licencing

19. Standard Appointment Documents
● In relation to professional appointments, to date none of the
major publishers of standard form professional appointments
have amended their forms of appointment in light of BIM.
However:
● The (RIBA) published the RIBA Agreements 2010 (2012
revision) in October 2012. The RIBA Agreements 2010 (2012
revision) do not appear to include any amendments
expressly catering for BIM. However, it is unclear whether
this is because RIBA considers them suitable for use on a
BIM-enabled project without any changes or because it plans
to publish BIM-specific amendments in due course.
● The Construction Industry Council (CIC) did state that it was
revising its scopes of services to reflect BIM and, in
particular, the role of the BIM model manager in a BIM Level
2 project. However, it has not published any revised versions
to date, so far as we are aware.

20. Standard Appointment Documents
● Aside from standard forms of contract, some other
documents that are also important in a construction
project have been amended or replaced. For example:
● In April 2012, the RICS published the second part of
the New Rules of Measurement, intended to replace
the Standard Method of Measurement, seventh edition
(SMM7) by summer 2013. The RICS stated that the
NRM are better suited to BIM projects than SMM7.
● The RIBA Plan of Work 2013 expressly caters for use
on a BIM-enabled project. Although this is not a form of
contract, it is an important document in many
construction projects.

21. BIM – Current problems
● Not using BIM
● What kind of problems and how will we solve them ?
• BIM not documented
• Contract problems – no EIRs
• The CIC (BIM) protocol
• Process problems
• Standard of care / Scope of services
• Common Data Environment
• Intellectual Property
● New issues and existing forms of dispute resolution
tribunals

22. Contract Problems
● BIM process used as a part of the project, it is
discussed and implemented in an ad hoc way but not
documented
• What happens if it all goes wrong ?

23. Contract Problems
● Employer – no specific information requirements but
states – “ The Contractor shall deliver the Project and
the Models to BIM Level 2”
● Tier 1 contractor produces a detailed BIM execution
plan as part of the main contract and sends that to the
employer. It is not defined as a contract document no
reference is made in the subcontracts. There is a
general requirement in the subcontract to comply with
the main contract.
● The subcontracts contain standard design drafting that
does not refer to the BIM execution plan and standard
copyright licensing solutions

24. Contract Problems
● Subcontractor’s design consultant cannot provide the
information in accordance with the BIM execution plan
● A third party designer can provide the BIM content, but
not by the deadline and will require payment and will
not sub-licence his work for use by the Employer for
ongoing asset management.
● Is the subcontractor in breach of contract ?
● What are the implications for the contractor ?
● What are the implications for the employer ?

25. Contract Problems
● Contractor must accept 2D or delay the project and
claim his liquidated damages from the subcontractor
● If he cannot accept 2D who will pay for the additional
BIM costs and how can he get his 3D BIM output
licensed ?

26. CIC Protocol (first edition 2013)
(http://www.CIC.org.uk/publications)
● Suitable for BIM Level 2
● How does it work?
• Incorporation by reference
• Takes precedence over other terms
• It provides a mechanism for the project team to
produce specific information at specific times to set
standards (PAS 1192-2) (data drops)
• Appendix 1 – Model Production and Delivery Table
• Appendix 2 – Information Requirements
• Contains extensive limitations of liability and
exclusions to protect the supply chain

27. CIC BIM protocol
● The Employer completes the Protocol in connection with all direct
appointments and contracts (Project Agreements) to be entered into
with Project Team Members.
● Project Team Members “ any person having responsibilities in relation
to the production delivery and or use of the Models”.
● The Protocol is incorporated into the appointment documents and
building contract.
● Project Team Members required to incorporate the Protocol in
contracts further down the supply chain.
● The Protocol addresses specific obligations associated with the
production of the Models and their use.
● Obligations associated with design deliverables will remain in the
wider agreement.
● Employer to ensure that there is always an Information Manager
appointed.

28. Legal issues to consider
● CIC protocol separates design responsibility from information
management. i.e. “clash detection” is not the Information Manager’s
responsibility.
● The CIC protocol also provides a different standard for delivery of BIM
information to that required of design. The obligation to provide BIM
information is one of reasonable endeavours and subject to matters
outside of your control.
● Whether in the event of consequential delay you would be entitled to
any compensation, would depend upon the drafting of the standard
contract.

29. Process Problems
● In practice does the supply chain separate the
production of BIM information and design information ?
● It is not clear that these are separate procedures
● Even if they technically separate the contract drafting
can mean that in practice they have at least to be
running concurrently
• The protocol and other standard contracts envisage
that in the event of discrepancies between the 2D
information and the model the model will take
precedence.

30. JCT 2016 Design and Build

31. The standard of care / Scope of services
● In the absence of any express drafting would a design
and build contractor have an obligation to provide a
model that was fit for its purpose ?
● Would the consultant be subject only to a standard of
reasonable skill and care ?
● Scope of services – poorly defined requirements will
produce disagreement over the scope of the
appointment or sub-contract
● The law has developed content for the traditional roles.
In the absence of such case law how will we decide
upon the content of new roles such as BIM Manager ?

32. Common Data Environment
● Content
● Access
● Disclosure
● Data management protocol ?

33. Trant Engineering Limited v Mott
MacDonald Ltd [2017] EWHC 2061
● Trant Engineering Limited (“Trant”) was employed by the
Ministry of Defence as the main contractor on the Mid
Atlantic Power Project in the Falkland Islands. Mott
MacDonald Ltd (“MML”) was engaged by Trant to provide
design services and to act as the BIM coordinator, controlling
access to the common data environment.
● A payment dispute arose and the parties disagreed over
whether a contract existed between them at all. MML
suspended its services and revoked Trant’s access codes to
the common data environment. Trant terminated the alleged
contract and, pending resolution of the substantive dispute,
sought an interim injunction from the TCC requiring MML to
provide Trant, and others involved in the project, with access
to the design data and design materials that were stored in
the common data environment.

34. Trent Engineering Limited v Mott
MacDonald Ltd [2017] EWHC 2061
● The TCC granted the interim mandatory injunction and held,
amongst other things, that:
● Damages would not provide an adequate remedy for Trant
because the likely losses on the GBP 55 million project
would far exceed the GBP 1 million cap on damages
recoverable from MML under the alleged contract. The TCC
also found that Trant’s potential losses would not be purely
financial since the works were part of “a wider project to
benefit the Falkland Islands”.
● The balance of convenience favoured granting the injunction.
Even if a contract had not been formed, there was a “high
degree of assurance” that Trant was entitled to access the
design data in the common data environment. It was also
relevant that, without access, Trant would lose a year’s
progress on its works, so the injunction would preserve the
status quo.

35. Trent Engineering Limited v Mott
MacDonald Ltd [2017] EWHC 2061
● The coordinator of the common data environment within a BIM enabled project
can control the data room for the entire project.
● If a BIM coordinator revokes access to a common data environment, which
contractually it may be entitled to do (for example, for non-payment), the BIM
coordinator is not only revoking access to its own designs, for example, but,
potentially, to all other designs, schedules, contracts, reports and other data and
information about the project within that platform.
● Revocation of access to a common data environment could bring the project as a
whole to a standstill.
● Is an employer best placed to act as the BIM coordinator ?
● The employer itself may not have the capability and / or the requisite technical
expertise to act in that capacity.
● On each project it is important to carefully consider which party is best placed to
host and control access to the common data environment and the transfer of that
responsibility if it moves during the lifecycle of the project or facility

36. BIM Objects and IP
● There are different routes by which your BIM Object may
come into the market;
● Recent survey;
• own website
• third party hosting – BIM Store, NBS BIM Library – many
others
• proprietary software
● It is at the point where the object is provided / downloaded
that the user acquires its rights to use the object
● Those rights are governed by the terms and conditions of the
service
● Where you are hosting your own objects – you will have to
set those terms and conditions
● Where you are using a third party, that will form part of the
negotiation / agreement of using that third party

37. CIC Protocol (first edition 2013)
• intellectual property rights
- copyright remains with the author
- licence given and received from the employer
- team members cannot amend others’ work
- the extent of the licence is potentially greater than the licence given in
the context of a traditional construction contract
- “Permitted Purpose” covers construction, maintenance and operation
of the project consistent with the level of detail of the relevant model (
including a model forming part of a Federated Model ) ”
- Federated Model means a model consisting of connected but distinct
individual models
- Employer and team members both represent that they have or will
procure the rights to grant the licences or sub-licences
- Does it deal adequately with IP rights of the ‘federated model’ ?
- Does not deal with database rights

38. CIC Protocol – Licence

39. Third party hosting BIM objects
● Use and right to grant licences and sub-licences may be governed by their conditions
● “5. The non-exclusive licence
● 5.1 By accepting these Terms and Conditions, RIBAE grants you a non-transferable,
non-exclusive licence to use the National BIM Library. Such use is subject to these
Terms and Conditions.
● 5.2 You shall not grant sub-licences, in whole or in part, of any of the rights granted
under these Terms and Conditions, or sub-contract any aspects of exploitation of the
rights licensed to it, without RIBAE’s prior written consent. Whether to grant consent or
not shall be a matter for RIBAE’s absolute discretion in all circumstances.
● 5.3 Subject to compliance in full with these Terms and Conditions, you may reproduce
part or parts (related to individual BIM Objects but not a material proportion) of the
National BIM Library either alone or in conjunction with your own material;
● for the purposes of your own personal use where that personal use is not for any
commercial or profit making purpose; or
● for use by educational institutions and their students for educational purposes only; or
● for inclusion in any drawings or contract documents used or intended to be used in
connection with a building contract where you are or may become a contracting party,
or in connection with which you are engaged or may be engaged in the future by one of
the contracting parties in a professional capacity;
● but not otherwise.”

40. BIM Protocols
● What are they ? - it depends
● Do we need them ? - yes until the standard forms no
longer refer to them and we have standardised our
process and addressed the drafting in the conditions of
contract
● What should they contain – it depends
● Don’t just do BIM !
● Document it and get the documentation checked by a
lawyer or someone who knows about the law and BIM

41. Contact
● Consultant Solicitor at Trowers & Hamlins LLP
● d 0121 214 8854
● M 07918 706230
● Or M 07572087445
● e twillis@trowers.com

42. Contact
© Trowers & Hamlins LLP 2015
Trowers & Hamlins LLP is a limited liability partnership registered in England and Wales with registered number OC 337852 whose registered office is at 3 Bunhill Row, London EC1Y
8YZ. Trowers & Hamlins LLP is authorised and regulated by the Solicitors Regulation Authority. The word “partner” is used to refer to a member of Trowers & Hamlins LLP or an
employee or consultant with equivalent standing and qualifications or an individual with equivalent status in one of Trowers & Hamlins LLP’s affiliated undertakings. A list of the members
of Trowers & Hamlins LLP together with those non-members who are designated as partners is open to inspection at the registered office.
Trowers & Hamlins LLP has taken all reasonable precautions to ensure that information contained in this document is accurate, but stresses that the content is not intended to be legally
comprehensive. Trowers & Hamlins LLP recommends that no action be taken on matters covered in this document without taking full legal advice.
(c) Copyright Trowers & Hamlins – July 2015 – All Rights Reserved. This document remains the property of Trowers & Hamlins LLP. No part of this document may be reproduced in any
format without the express written consent of Trowers & Hamlins LLP.