The new [BIM] Information Protocol

By Jeremy Glover, Partner, Fenwick Elliott

In Issue 27, I wrote about the application of BIM under the FIDIC Form of Contract. I noted that I thought it likely that any “BIM definitions” that are adopted by FIDIC will be based on international standards, preferably ISO 19650. There is no further news from FIDIC but in the UK, at the beginning of June 2020, the UK BIM Framework1 published a new template Information Protocol which is designed to conform with the (relatively new) international standard BS EN ISO 19650-2 (which deals with the delivery phase of assets). 

The essential idea behind any (BIM) protocol is that it defines a code of conduct, more specifically a code of contractual conduct, which deals with risk allocation, setting out the rights, roles and responsibilities of the parties including for example data or model delivery timetables. Until June, the closest to a standard protocol in the UK was the CIC BIM Protocol, the second version of which came out in April 2018. This second edition was drafted to align with the then prevalent standard, PAS 1192-2. This meant that it does not align with the new international standard for information management, BS EN ISO 19650, which was published in January 2019.

The first obvious difference between the two protocols is the name. The word “BIM” has been dropped. Does this mean the end of the use of the word? It is so ingrained in general use now. However, the word “BIM” was dropped (from the title at least2) for an important reason. Every project is different and will have different requirements in relation to the use of information and data. These requirements should be properly defined. That does not mean, for example, saying: the project shall be compliant with BIM Level 2.  As the Winfield Rock Report demonstrated, everyone has their own interpretation of what BIM Level 2 means.3 Dropping the word “BIM” has been done to encourage those putting the contract documentation together to concentrate on the exact requirements of the project in question. 

At the launch of ISO 19650 Jøns Sjøgren, Chair of the ISO technical subcommittee, said: 

“Taking this to an international level not only means more effective collaboration on global projects, but allows designers and contractors working on all kinds of building works to have clearer and more efficient information management.”4

This was a message echoed by May Winfield, commenting on the launch of the Information Protocol:

“The BS EN ISO 19650 is a game changer in seeking to progress, and comprehensively align, BIM and information management practices across the industry, and worldwide.”5

The Key Features of the new Information Protocol 

It is of course early days in the adoption of BS 19650, but the new Information Protocol is an important step forward in encouraging use. As a starting point, always remember that any protocol only has contractual effect when it has been incorporated into your contract and the new Information Protocol includes a suggested incorporation clause. It also suggests that the new Information Protocol should take priority over the various contract documents.6 One reason for this is to ensure consistency across the various appointment documents. Design information comes from many sources and the Introduction to the Information Protocol notes that to conform to BS 19650-2 the Information Protocol should be incorporated across all project appointments, including the client, contractor, consultants and suppliers. This is common sense, as you want to ensure that all the contract documents are aligned, i.e. that everyone is required to use the same standards and data. 

One of the key parts of the Information Protocol is the front page, which sets out a number of Information Particulars which must be filled in. These include details of the parties, here described as “Appointor”, “Appointee” etc., following the terminology of ISO 19650. They also include (at least by reference to a specific document) details of the Level of Information Needs, BIM Execution Plan, Delivery and Security Management Plans and Information Standards. There is considerable sense in requiring all this information to be together in one place, but of course the amount of information listed on the front page does tend to mean that a failure to fill in the Information Particulars in full might diminish the effect of the Information Protocol.

The idea is to ensure that the Information Protocol sets out in as clear a way as possible, the parties’ obligations to deliver information and information management as set out in the Protocol itself. In this way, the parties will still be acting in accordance with BS-19650, as the Information Protocol has been drafted to comply with the standard. This is something that is far more effective than simply requiring the parties to comply with the standard. It is better to reduce in any contract as far as possible the potential for uncertainty and/or ambiguity. 

The definitions come at the end of the Information Protocol in clause 13 and are followed by a short glossary of terms taken from ISO 19650. The terminology as you would expect follows that used in ISO 19650. “Required Standard” is stated to mean the level of skill and care applicable to the Party’s equivalent obligation under the Appointment. The reference back to the contract between the Parties is intended to ensure consistency. This is helpful bearing in mind the need for consistency with any warranty or professional indemnity requirements.

Parties should of course always take care to ensure that their contract documents are consistent in terms of defining the standard of care required for design, fitness for purpose or reasonable skill and care. This is particularly the case when parties on BIM-enabled projects are required to work to certain standards. Depending on what those standards are, that might introduce the concept of fitness for purpose, when it may not have been intended or realised. 

Sub-clause 3.1 says that the Information Particulars should be reviewed and updated (if necessary) during the course of the Works.  This seems sensible. However, if there is an update that attracts more time and/or more money for the Appointee, this will be assessed in accordance with what the Appointment says.

The Parties’ obligations are set out at Clause 4. The Parties are required to comply with the Information Particulars when “preparing, sharing and/or publishing information” at the times stated. This is, however, subject to sub-clause 4.6 which acknowledges that this is subject to any circumstances which may entitle the Parties to an extension of time or additional cost under their Appointment. Sub-clause 4.7 is reinforced by a positive obligation to provide such information and assistance as the Information Particulars require them to provide. An example of why it is important to ensure that the front page is fully and carefully filled out. 

The security obligations are dealt with at sub-clause 4.8 and clause 11. These will have been drafted to comply with the forthcoming BS-EN ISO 19650-5, which is currently due to be published in July 2020. Again, a key requirement is to comply with the Security Management Plan, details of which are to be found in the Information Particulars. 

In contrast with the CIC Protocol, there is no defined or identified “BIM Manager” or “Information Manager.” This does not mean that you do not have to have one, or indeed that you do not need one. There is just no express obligation. As a general view, whoever is coordinating the design generally, will have an element of responsibility for this in any event.   

Clause 5 deals with CDE Solution and Workflow which is defined in sub-clause 13.6 as meaning the “common data environment”, the processes to be used as part of the common data environment and the technology to support those processes. By comparison with the CIC Protocol, the increased obligations regarding the establishment, exchange and storage of electronic data reflect the increased importance generally being given to this issue.

It might be, in part, that this is because of the widespread reporting of the one, to date, UK BIM case, of Trant Engineering Ltd v Mott MacDonald Ltd,7 which was really not about BIM, but about who had control over access to the project electronic data and how that control could be exercised.  Here sub-clause 5.5 takes the Trant case into account, seeking to avoid the problems raised in that case by setting out when parties should have access to the information in the CDE Solution and Workflow. In short, here, the Appointor is required to arrange for the Appointee to have reasonable access to the information in the CDE Solution and Workflow (again as provided for in the Information Particulars) insofar as necessary for the Appointee to perform its obligations under the Information. 

As noted above, the word “BIM” has been dropped from the title. For similar reasons clause 7, which deals with Levels of the Information Need, makes no reference to BIM Level 2 or any other level. Clause 7 is a short clause which merely makes clear that the methods for determining Levels of Information Need are to be agreed and detailed in the Information Particulars. Another example of the general approach of looking for specificity and not general references to complying with standards and other similar items. In this way, the clause is a good example of the way in which the Information Protocol is designed to encourage the parties to stop and consider, at an early stage before the contract is entered into, what type of information and what standards are actually going to be required. 

As you would expect, the Information Protocol includes, at sub-clause 8.1, a requirement that the parties observe their GDPR obligations, with the remainder of clause 8 dealing with copyright issues, again in more detail than in the CIC Protocol.  

Clause 10 deals with liability and makes it clear that neither party has liability to the other, if the other party changes or modifies the model or related work for any other contractually defined purpose. 

Conclusion

The new Information Protocol can be downloaded here: https://ukbimframework.org/wp-content/uploads/2020/06/Information-Protoc...

It is an important step forward because it is the only protocol to date which is compliant with the BS-19650. However, it is perhaps too early for any formal conclusions, as it is only through the use and adoption of the Information Protocol that lessons can be learnt. 

That said, the new Protocol does require project participants to stop and think about their information requirements up front, at an early stage. There are a number of step-by-step processes and documents that need to be agreed before the Protocol can be finalised. This can only be a good thing, because it should ensure greater clarity generally about what parties are required to do, and by when; something which goes a long way to avoiding disputes.  

PS 

If you want to find out more about the international standard BS 19650, it is well worth visiting the BIM Framework Website: https://ukbimframework.org/ which, as the homepage explains, sets out the “overarching approach to implementing BIM in the UK” in conjunction with the UK BIM Alliance (https://www.ukbimalliance.org/), BSI and CDBB (Centre for Digital Built Britain: https://www.cdbb.cam.ac.uk/). These organisations provide a wealth of information about the Protocol and other related BIM and digital design issues which have a universal impact.  Although these organisations have a UK focus, BS 19650 is intended to be an international standard and it will be interesting to see the impact and rate of adoption of the Information Protocol generally, and not just in the UK.  

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• 1. See paragraph headed “PS” below.
• 2. References to the BIM Execution Plan remain.
• 3. The authors (in)famously asked 42 professionals for their definition: each gave a different answer. Overcoming the Legal and Contractual Barriers of BIM, February 2018.
• 4. Comment made as part of the launch of ISO 19650 in January 2019. See https://www.iso.org/news/ref2364.html [Accessed 19 June 2020]
• 5. https://www.bimplus.co.uk/news/gamechanger-information-protocol-publishe... [Accessed 19 June 2020]
• 6. This does not mean that the Information Protocol should always take priority in every regard. The position will depend on that stated in the appointment documents.
• 7. Trant Engineering Ltd v Mott MacDonald Ltd [2017] EWHC 2061 (TCC). See for example: https://www.fenwickelliott.com/research-insight/annual-review/2017/uk-bi... , [Accessed 20 June 2020] for further details.