The BS EN ISO 19650 series represents an important development in the worldwide BIM journey. Here, May Winfield, associate director at Buro Happold, Simon Lewis, partner at Womble Bond Dickinson, Andrew Croft, senior associate at Beale & Company offer an overview of the Information Protocol.
The introduction of the ISO 19650 series, a suite of internationally agreed information management standards in the UK at the start of 2019, was a significant progression the approach to information management.
The ISO 19650 series has been incorporated into UK standards as the BS EN ISO 19650 series. The ISO 19650-2:2019 (being the design and construction aspect of the standards) envisages that the contractual roles and rights of parties in implementing the standards will be contained in a schedule called an Information Protocol. This is consistent with the practices under the previous standards which provided for the incorporation of a BIM Protocol.
In essence, both an Information Protocol and its processor, a BIM Protocol, is a schedule to the contract which sets out the parties’ rights, roles and duties in compliance with the standards.
However, as a result of the key changes introduced by ISO 19650-2:2019, the current contractual information management documents were not consistent with the new standard. New complementary contractual documents, which complied with the requirements of the international standard, were therefore required. The resulting Protocol is the result of many months of late nights and various consultations with fellow lawyers and the Guidance Working Group members.
The Protocol uses the CIC BIM Protocol (second edition) as a basis: this familiarity should make it easier to digest and apply. It has progressed and amended its provisions to reflect the new tasks and processes of the BS EN ISO 19650 series published to date, whilst taking into account the lessons learnt and feedback from the use of BIM Protocols within the industry to date.
To this end, it is hoped that all readers will find that the Protocol is user friendly, easy to understand and apply, regardless of your BIM knowledge. This article seeks to provide some helpful explanation of the Protocol, in particular how it differs from the CIC BIM Protocol.
Use of Information Protocol
As with the CIC BIM Protocol (second edition), the Information Protocol needs to be incorporated into a contract for the document to have contractual effect. The guidance to the Information Protocol includes an example of an incorporation clause which can be used to incorporate the Information Protocol into a contract.
A key new feature in the Information Protocol is that all appointment and project-specific information, processes and documents is to be set out in one place, the Information Particulars. For ease of use and to encourage those incorporating the Information Protocol to complete the Information Protocol, the Information Particulars are set out on the front page of the document.
The Information Protocol is drafted such that the document can function even if the Information Particulars are not completed. However, if the Information Particulars are left blank the parties and the key information management processes and documents will be unclear, which could create uncertainty.
Key new features
Key new general features of the Information Protocol include the following:
The Information Protocol is intended for use at all levels of the supply chain and refers to two main parties: the appointee and the appointor. The appointee is the party appointed by the appointor under the appointment and the appointor is the party appointing the appointee. These flexible terms enable the protocol to work alongside any contract or sub-contract at any level. The extent to which the processes in the Information Protocol are applicable at the relevant tier of the supply should be considered before it is incorporated into an appointment.
Some provisions in the Information Protocol impose obligations on the appointing party (ie the employer) and only apply if the appointing party is party to the appointment. Similarly, some provisions do nt apply if the lead appointed party is a party to the appointment.
Terminology is generally consistent with BS EN ISO 19650 and some of the definitions in BS EN ISO 19650 are used in the Information Protocol. For ease of reference BS EN ISO 19650 defined terms are included in italics and a glossary of those definitions is appended to the Information Protocol.
The Information Protocol makes clear that any obligation to deliver information management in accordance with BS EN ISO 19650 means to perform the parties’ obligations under the Information Protocol, as otherwise such a general obligation would be unclear.
The parties have no greater obligation under the Information Protocol than to exercise the level of skill and care required under the appointment to reduce the risk of the Information Protocol being inconsistent with professional indemnity insurance arrangements.
Conflicts and coordination
Another key consideration when incorporating the Information Protocol into a contract is the approach to resolution of conflicts between the Information Protocol and the underlying appointment. One change from the CIC Protocol (second edition) is that the Information Protocol does not state that any aspect of the Protocol will always take priority so if the appointment includes an order of precedence that will always apply. This makes the Information Protocol a more flexible document. The example incorporation clause included in the Information Protocol guidance also allows parties to indicate whether the Information Protocol takes priority over the appointment or not.
For the Information Protocol to have its intended effect and for consistency it is suggested that the Information Protocol is stated to take priority. The Information Protocol also includes a helpful process for addressing conflicts and omissions in or between 1) information provided in relation to the Project and; 2) the processes and documents included or to be included in the Information Particulars.
Obligations of the parties
The obligations of the parties remain set out in clause 4 but refer now to the documentation required by the BS EN ISO 19650 series and how it anticipates tasks are allocated. For example, the obligations in the BS EN ISO 19650:2-2019 regarding testing of methods and procedures, and the obligations to maintain capacity, have been included in clauses 4.2 and 4.4 respectively.
The preparation of appropriate documentation is an important part of the BS EN ISO 19650 series, and the Protocol recognises this in placing obligations on the parties in clauses 4.10 to 4.14 to prepare or assist in updating these documents.
Readers will notice that certain references in the CIC BIM Protocol that have been superseded by the BS EN ISO 19650 have been removed, such as obligations regarding the Level of Definition and Responsibility Matrix. Instead, there are requirements to comply with the Information Particulars. Clause 4.3 then requires the lead appointed party to establish and maintain the delivery team’s risk register, and clauses 4.12 and 4.13 place obligations on parties regarding Task Information Delivery Plans.
The preparation of this new Protocol also enabled us to take into account lessons learnt to date from the industry’s use of BIM requirements and obligations, such as an express acknowledgment in clause 4.6 that compliance with the Information Particulars may give rise to an extension of time and/or additional costs under the appointment, and an express, positive obligation in clause 4.7 for the parties to provide such information and assistance required by the Information Particulars.
Security
The Protocol’s security provisions in clause 4 and 11 and been updated to take into account the recently-published BS EN ISO 19650-5, and ensure consistency with its provisions. As a consequence, the Protocol will remain current and applicable after the formal issue of BS EN ISO 19650-5. We are grateful for the assistance of those involved in the preparation of BS EN ISO 19650-5 in providing invaluable guidance to ensure this could be achieved.
These amendments to the previous security provisions include, for example, new references to the Security Management Plan and removal of references to a Built Asset Security Manager. Readers will be relieved to know, however, that the security provisions have not been completely rewritten, but simply adjusted where appropriate to reflect the changes introduced by BS EN ISO 19650-5.
CDE solution and workflow
Recognising the increased obligations regarding the exchange of electronic data introduced by the BS EN ISO 29650-2:2019, clause 5 features a few new clauses compared to the equivalent clause 5 in the CIC BIM Protocol. This includes obligations in clause 5.3 to establish, implement, configure and support the CDE solution and workflow, and obligations in clause 5.4 regarding the storage of the information after it has been archived.
Again applying lessons learnt to date, clause 5.5 takes into account the case law relating to the CDE environment and seeks to avoid the problems encountered in Trant v Mott MacDonald [2017] EWHC 2061 by clarifying when parties should have access to the information in the CDE solution and workflow.
The clause provides that access should be provided for such period as the party is liable for its services under its appointment, recognising the reality that parties do not (and often cannot) maintain a complete record of the electronic data on a project which becomes vital in the event of an issue arising. Though we would note that parties can only benefit from this provision if the Protocol is properly incorporated as a contractual document into their appointments.
Information management, use and transfer
The Information Protocol reflects the focus in BS EN ISO 19650 on information, its use and organisation. Consequently, clauses 6 to 9 of the Information Protocol reflect the focus in BS EN ISO 19650 on information, its use and organisation. These clauses cover the management, use and transfer of information in more detail than the CIC BIM Protocol.
Clause 6 deals with the management of information, requiring the appointment of appropriate individuals to undertake the information management function, obliging the appointor and the appointee to carry out the information management tasks set out in the Information Particulars including those listed in clauses 6.2 and 6.3. The parties can appoint others to undertake all or part of their information management functions but clause 6.4 confirms that any such delegation does not allow them to avoid their obligations under either the Appointment between them or the Protocol itself.
The Protocol specifies in clause 7 that the parties need to agree the appropriate Level of Information Need and also, importantly, the metrics for determining the appropriate Levels of Information Need which will be set out in the Information Particulars. This establishes the framework for specifying the extent and granularity of information to be provided in the Information Particulars.
A new clause 8.1 covers GDPR and Data Protection laws arising from the processes to which the protocol applies. Clause 8.1 is a short, flexible clause intended to keep pace with developments in this area rather than provide an overly-prescriptive set of obligations.
The remainder of clause 8 is similar to clause 6 of the CIC BIM Protocol. Broadly, the clause provides for licences to be issued by the parties enabling the use of the Material for the Permitted Purpose, reflecting the contractual ring-fencing of liabilities and obligations in existing construction contracts. Any provisions in the appointment take precedence and are modified only insofar as necessary to comply with the obligations in the Protocol. To the extent that there are no such provisions the Protocol will apply.
Clause 9, covering transfer of information, establishes a contractual obligation on the parties to deliver the information required by the Information Particulars. In addition the lead appointed party is required to carry out a risk assessment in relation to the preparation of the management of information and to reflect the long term asset information management strategy. This is intended to tie this aspect of the design/delivery phase to the longer term asset information requirements, reflecting the information flow structure set out in ISO19650-1.
Finally, clause 9.4 requires the Lead Appointed Party to assist the appointing party in capturing lessons learnt during the performance of the Appointee’s obligations under the appointment. This is a useful provision which hopefully will prompt parties to attempt to preserve information rather than allow it to dissipate as project teams are disbanded and move on to the next job.
Conclusion
The BS EN ISO 19650 series represents an important development in the worldwide BIM journey. However, for the new standards to have effect if is essential that they are clearly reflected in the contractual documents. Further, without clear and comprehensive contractual provisions, the benefits can be countered by misunderstandings and unnecessary disputes.
We hope that the Protocol proves a useful document which will facilitate contractual clarity in a form that can be easily applied by both BIM specialists and those new to the BIM journey.
This article is not legal advice and professional advice should be obtained on any specific issues and matters.
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