Contracts should enable, and not constrain or conflict, with the digitalisation journey. Data sharing and collaboration need to be carefully supported. This can be addressed either through conditions of contract or dealt with in a protocol that overlays contracts. Data takes the form of outputs and deliverables identified as part of the scope of works or service that the supplier is to provide, the format in which it is to be provided and when.
Data will in many ways be the same as any other deliverable under the contract, however there are issues that need to be considered due to the fact digital information will be shared with others and combined and developed in an integrated or federated information model. The timing of information releases, the liability and responsibility for the information provided and the development and use of this in an integrated or federated model have to be thought about carefully. Ultimately, the end product will be a model that combines information provided by the parties that the client will use to manage the completed asset.
In order for the information model to meet the client’s overall requirements there will be a need for each party to have a guiding hand on its development, following requirements which may need to change as the project develops. There may be clashes with the requirements in individual bi-party contracts and commercial managers should be prepared for this.
Traditional bi-party contracting creates a hierarchical structure with risk and responsibilities split across the different parties, including responsibility for the creation, sharing and development of data which can be ultimately used in an information model. This way of contracting creates multiple interfaces that need to be effectively managed. However, due to the individual allocation of risk to each party, the approach can drive a silo mentality in which each party seeks to protect its own position, instead of collaborating on the basis of what is best for the project. To overcome this silo approach, clients and their suppliers are moving to more collaborative engagement models such as alliancing.
In practice, there is a sliding scale of alliancing from simply having some form of partnering charter or nonbinding agreement overlaying another engagement model, all the way through to the creation of a formal contractual alliance. In all cases, the parties are encouraged to work together on a best-for-project basis and are incentivised to do so via shared performance measures. When a contractual alliance is created, the parties sign up to the same contract and share the majority of risk and reward.
There is support for alliancing from government in the Construction Playbook1, which states that while alliancing arrangements are not always appropriate, “they should be considered on more complex programmes of work as the effective alignment of commercial objectives is likely to improve intended outcomes as well as drive greater value for money.”2
Enterprise
Project 133 from the Institution of Civil Engineers is an illustration of what currently constitutes ‘good’. Described as an enterprise model for infrastructure delivery, Project 13 brings together numerous partners and suppliers who integrate their capabilities, processes and information under incentives and long-term relationships. The asset owner, or client, is the central driver of change, and the parties are rewarded based on their value to the overall project outcome – not on a transaction of time or volume of work. Risk is aligned with capability, and is not cascaded down the supply chain.
Coming from an adversarial and competitive approach to contracting, the shift to enterprise and alliancing is immense, but it is doable. Success lies in the hands of the client, or ‘capable owner’ as Project 13 calls them. However, many owners will take time to become capable. Contractors need ways to transform their methods of working that can be driven by themselves in the meantime, whilst forming those long term relationships with the supply chain that will be called upon in the future.
Change takes time
Whilst the use of alliancing and enterprise ways of contracting may be the way forward, we need to consider how to deal with the more traditional bi-party contracts that pervade the industry. Even in a move to alliancing, not all members of the supply chain will form part of the alliance and there will still be bi-party contracts at subcontract and subsubcontract level. We therefore need to consider the digital maturity of all parties and recognise that the expertise and ability to transform will vary, and yet each part of the chain has a part to play in the move to a more digitally enabled industry.
The wider supply chain needs to be engaged in information management, however the level of their involvement, the data they supply and the format of this needs to be proportionate to their role and their level of digital maturity. The approach adopted across contracts should be scalable to reflect the differing levels of maturity. Levels of IT literacy will vary and Tier 1 contractors have a duty to engage with their supply chains and train them on the systems they are employing on projects at an appropriate level of detail to ensure the project’s security. While the wider supply chain may need an incentive to ‘do BIM’ – to contribute to the collaborative information management of a project and to work with that information themselves, whether accessing the model interface or inputting data, everyone must take responsibility for their part in the information delivery process.
Protocols allow a consistent set of requirements to be used for all parties that contribute to the information model, however this can lead to clashes between the terms of the protocol and the contract it overlays. Careful consideration has to be given as to how protocols and contracts interact and the interfaces between them need to be actively managed.
Where alliancing approaches are adopted, the need for protocols to manage the interfaces between the parties contributing to the information model is reduced or removed as the parties share in the performance risk of the information model.
The Construction Industry Council (CIC) BIM Protocol was the first to guide information sharing and collaboration as responsibility for the design model changed on a project. A second edition was released in 2018. These have since been developed into two information protocols within the UK BIM Framework4 (for ISO 19650-2 and ISO 196503). While there is a wealth of helpful processes and procedures, parties will still need to find a way to ‘talk to each other’ digitally and trustfully.
Protocols are ‘points in time’ and do not address the wider behavioural change that needs to occur. Ways of working with protocols and standards in general need to be addressed by contractors. While there has been a government information management mandate since 2016, neither clauses nor protocols can be forced onto parties arranging a contract outside of the mandate. The only persuasive argument will be demonstrative. Contractors and clients need to share case studies and experiences, facilitated by professional bodies and their knowledge-sharing platforms, highlighting reduced rework and reduced disputes on projects.
Whatever contracting model is adopted, successful information management requires the parties to work collaboratively and this should be made a contractual obligation, such as the requirement in the NEC4 suite of contracts for the parties to act in a spirit of mutual trust and cooperation.
One of the largest questions that will need to be addressed contractually is around responsibility for the information model and the data within it. This issue needs to be considered both during the development of the model and upon its completion. This is unfortunately a common objection to collaboration in information management.
In alliancing, depending on the specific form of contract used, the parties share in the risk of the creation of the digital information, removing the need for each party to protect its own position and have this addressed in the contract or protocol. Such an approach is adopted in the NEC4 Alliance Contract in which the alliance as a whole is responsible for updating or creating the information model and correcting any errors within it. With this kind of contract there is no requirement to allocate responsibility and risk for elements of the model that each party creates or inputs into, with all parties sharing the risk to the extent of their liability under the contract. This allows them to work collaboratively, without the need to protect their individual position, and the information within the model becomes the property of the client on completion.
However, this flow does not work with multi-party contracts. If the client holds a federated model it needs to consider at the earliest planning stages how it will provide secure, relevant and proportionate access and how it will manage the information contributions of others. In some contracting models, such as Design, Build and Operate, the responsibility for the creation or modification of the federated model may be passed to the first tier supplier, who will co-ordinate the inputs into the model from the supply chain and then pass the federated model back to the client at the end of the contract.
Planning for the transferrence of responsibility should take in soft landings guidance5 and the Line of Sight6 methodology from the Centre for Smart Infrastructure and Construction, which echoe the principle of keeping the end use of the asset constantly in mind. As the National Digital Twin Programme ramps up, the information model has to be put to use. Asset management objectives and any client-operated information management platforms7 have to be considered at the time of contract formation.
Contracts should enforce the principle that the client is ultimately paying for the information model and hence owns the delivered data. This does not preclude intellectual property or technical responsibility of those who have contributed to it. In general, while the output is project-specific, the skills to create it reside within the professionals employed on the project. The ‘golden thread’ philosophy, set out in the Hackitt Report,8 supports this ideal of being able to go back in time to determine who made what decision, when and why, by having a robust history of decision making within an information model. A properly BS EN ISO 19650 compliant common data environment (CDE) archive should provide this. In BS EN ISO 19650:2018, the archive state is used to hold a journal of all files that have been shared and published during the information management process as well as an audit trail of their development and any revisions. This should not be confused with an IT archive, which usually refers to a process where a file is removed from a live computer system to an offline environment where it is archived for subsequent retrieval.
Better information management should in theory lead to fewer disputes, as design and scheduling clashes are spotted before work begins on site, and an audit trail – or golden thread – of digital information should support change management, and also mediation and arbitration should a dispute fully develop.
In 2016, the Centre of Construction Law and Dispute Resolution at King’s College London released its research report Enabling BIM through Procurement and Contracts9. While almost six years old, it highlights many considerations for contract drafters and managers, notably that most contract forms in use are unsuitable alone for good information management. More recently in 2021, Constructing the Gold Standard – An Independent Review of Public Sector Construction Frameworks10 was published by the Cabinet Office to aid government clients in adoption of the Construction Playbook.
While not highlighting digitalisation specifically, the Conflict Avoidance Pledge11, supported by CICES as a member of the Conflict Avoidance Coalition Steering Group, demonstrates that signatories have committed to deliver value for money and work collaboratively. The behavioural changes that come with digital transformation will help signatories in fulfilling the pledge, which has been recognised by government in the Construction Playbook.
Another initiative supported by CICES and a good example of industry-wide collaboration is the Multidisciplinary Steering Group for Cost Assurance and Audits on Infrastructure Projects and Contracts12. This brings together construction lawyers, contractors, clients and finance advisors to address issues around cost assurance. The 2018 Winfield Rock Report: Overcoming the Legal and Contractual Barriers of BI13 is also imperative reading. The report gives a good overview of legal professionals’ understanding of the contractual issues around information management.
Contractual arrangements that enable data sharing to truly transform civil engineering surveying and construction itself are yet to be fully realised. The commercial component of projects has to mature to allow industry to exploit the potential of information management to deliver benefits during the capital and operational phases of assets. In a nutshell, if contracting carries on as normal, then information management will always be pushing water uphill.
Progress is being made. The UK government is very clear on that, saying: “We will ensure that contracts are structured to support an exchange of data, drive collaboration, improve value and manage risk."14
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1 https://www.gov.uk/government/publications/the-construction-playbook
2 Page 45, Construction Playbook
4 https://www.ukbimframework.org/resources/
5 https://ukbimframework.org/wp-content /uploads/2019/11/GSL_Report_ PrintVersion.pdf
6 https://www-smartinfrastructure.eng.cam.ac.uk/files/line_of_sight_july_2021. pdf
7 https://www.cpni.gov.uk/system/files/documents/eb/2a/cpnigiigimp-guidance-document.pdf
11 https://www.rics.org/uk/products/dispute-resolution-service/conflict-avoidance-pledge/
12 https://www.cfbusinesslinks.com/steering-group-csr
13 https://www.ukbimalliance.org/wp-content/uploads/2018/11/The-Winfield-Rock-Report.pdf
14 Page 12, Construction Playbook