BIM bytes: BIM and JCT contracts in practice

Earlier this year, the Joint Contracts Tribunal issued its “Building Information Modelling (BIM) Collaborative and Integrated Team Working” practice note “to assist in providing an understanding of BIM to those who may be new to or unfamiliar with the concept”.

With the JCT still the base position for much of the UK construction industry, this practice note is worth a read even for those for whom BIM is already a familiar concept, if only to note the subtle emphases.

First to note is that, once again, the link is being made between the use of BIM and collaborative team working, something which has been discussed in previous BIM Bytes columns. The JCT is optimistic over the greater interest that the construction industry has shown in the benefits of partnering and integrated and collaborative working, saying that “progress has been made”.

The practice note seems to acknowledge that progress has not been made in its mainstream forms of contract (notably the standard and design and build forms) and points instead to some lesser-used forms in the JCT suite as contractual responses to the greater need for integrated working in the industry.

The note also states that “[t]he effectiveness of the BIM process relies heavily on project participants working in an integrated and collaborative manner, and on their willingness to do so, irrespective of how this is addressed contractually.”

I would not say that working in an integrated and collaborative manner is not “irrespective” of contractual obligations. If the commercial drivers and contractual processes set out in the contract do not align with a desire to work as an integrated team then, when the going gets tough, the tough will not collaborate.

Also noteworthy is that the JCT rightly acknowledges the centre-stage of the CIC BIM Protocol. The JCT acknowledges that “[t]he CIC’s drafting is based on the principle the protocol is a contractual document and this is intended to take precedence over other documents for all provisions that relate to BIM”.

However, for the first time, the JCT has challenged this: “JCT considers that in the event of any conflict between the contract provisions and the chosen BIM Protocol it is the contract provisions that should prevail.” That expressly opposes the CIC’s guidance on this point.

This month marks the third anniversary of issue of the CIC’s protocol. When drafted, it was a laudable starting point for the industry. However, in the three years that have passed since its publication, the UK’s BIM landscape has shot forward. It may now be time for a review. 

By Assad Maqbool, a partner at Trowers & Hamlins specialising in projects and construction