®

use BIM with NEC3 contracts

An NEC document

April 2013

Construction Clients’ Board endorsement of NEC3

The Construction Clients’ Board recommends that public sector organisations
use the NEC3 contracts when procuring construction. Standardising
use of this comprehensive suite of contracts should help to
deliver efficiencies across the public sector and promote behaviours
in line with the principles of Achieving Excellence in Construction.

Cabinet Office UK

neccontract.com
NEC is a division of Thomas Telford Ltd, which is a wholly owned subsidiary of the
Institution of Civil Engineers (ICE), the owner and developer of the NEC.

The NEC is a family of standard contracts, each of which has these characteristics:
. Its use stimulates good management of the relationship between the two parties to
the contract and, hence, of the work included in the contract.
. It can be used in a wide variety of commercial situations, for a wide variety of types of
work and in any location.
. It is a clear and simple document – using language and a structure which are
straightforward and easily understood.

NEC3 how to use BIM with NEC3 contracts is one of the NEC family and is consistent
with all other NEC3 documents.

ISBN (complete box set) 978 0 7277 5867 5

ISBN (this document) 978 0 7277 5971 9

British Library Cataloguing in Publication Data for this publication is available from the
British Library.

# Copyright nec 2013

All rights, including translation, reserved. Except as permitted by the Copyright,

Designs and Patents Act 1988, no part of this publication may be reproduced, stored
in a retrieval system or transmitted in any form or by any means, electronic,
mechanical, photocopying, recording or otherwise, without the prior written
permission of the NEC Director, Thomas Telford Ltd, One Great George Street,
Westminster, SW1P 3AA.

Typeset by Academic + Technical, Bristol

Printed and bound in Great Britain by Bell & Bain Limited, Glasgow, UK
CONTENTS

Foreword v

Preface vii

Acknowledgements viii

Introduction 1
Incorporating BIM into NEC3 contracts 1
Using the CIC Protocol 4
ECC additional clause 6
ECS additional clause 6
PSC additional clause 6
FOREWORD

I was delighted to be asked to write the Foreword for the NEC3 Contracts.
I have followed the outstanding rise and success of NEC contracts for a number of years
now, in particular during my tenure as the 146th President of the Institution of Civil
Engineers, 2010/11.
In my position as UK Government’s Chief Construction Adviser, I am working with
Government and industry to ensure Britain’s construction sector is equipped with the
knowledge, skills and best practice it needs in its transition to a low carbon economy.
I am promoting innovation in the sector, including in particular the use of Building
Information Modelling (BIM) in public sector construction procurement; and the synergy
and fit with the collaborative nature of NEC contracts is obvious. The Government’s
construction strategy is a very significant investment and NEC contracts will play an
important role in setting high standards of contract preparation, management and the
desirable behaviour of our industry.
In the UK, we are faced with having to deliver a 15–20 per cent reduction in the cost to
the public sector of construction during the lifetime of this Parliament. Shifting mind-set,
attitude and behaviour into best practice NEC processes will go a considerable way to
achieving this.
Of course, NEC contracts are used successfully around the world in both public and
private sector projects; this trend seems set to continue at an increasing pace. NEC
contracts are, according to my good friend and NEC’s creator Dr Martin Barnes CBE,
about better management of projects. This is quite achievable and I encourage you to
understand NEC contracts to the best you can and exploit the potential this offers us all.

Peter Hansford
UK Government’s Chief Construction Adviser
Cabinet Office
PREFACE

The NEC contracts are the only suite of standard contracts designed to facilitate and
encourage good management of the projects on which they are used. The experience of
using NEC contracts around the world is that they really make a difference. Previously,
standard contracts were written mainly as legal documents best left in the desk drawer
until costly and delaying problems had occurred and there were lengthy arguments
about who was to blame.
The language of NEC contracts is clear and simple, and the procedures set out are all
designed to stimulate good management. Foresighted collaboration between all the
contributors to the project is the aim. The contracts set out how the interfaces between
all the organisations involved will be managed – from the client through the designers
and main contractors to all the many subcontractors and suppliers.
Versions of the NEC contract are specific to the work of professional service providers
such as project managers and designers, to main contractors, to subcontractors and to
suppliers. The wide range of situations covered by the contracts means that they do not
need to be altered to suit any particular situation.
The NEC contracts are the first to deal specifically and effectively with management of
the inevitable risks and uncertainties which are encountered to some extent on all
projects. Management of the expected is easy, effective management of the unexpected
draws fully on the collaborative approach inherent in the NEC contracts.
Most people working on projects using the NEC contracts for the first time are hugely
impressed by the difference between the confrontational characteristics of traditional
contracts and the teamwork engendered by the NEC. The NEC does not include specific
provisions for dispute avoidance. They are not necessary. Collaborative management
itself is designed to avoid disputes and it really works.
It is common for the final account for the work on a project to be settled at the time
when the work is finished. The traditional long period of expensive professional work
after completion to settle final payments just is not needed.
The NEC contracts are truly a massive change for the better for the industries in which
they are used.

Dr Martin Barnes CBE

Originator of the NEC contracts
ACKNOWLEDGEMENTS

The original NEC was designed and drafted by Dr Martin Barnes then of Coopers and
Lybrand with the assistance of Professor J. G. Perry then of the University of Birmingham,
T.W. Weddell then of Travers Morgan Management, T.H. Nicholson, Consultant to the
Institution of Civil Engineers, A Norman then of the University of Manchester Institute of
Science and Technology and P.A. Baird then Corporate Contracts Consultant, Eskom,
South Africa.
NEC wishes to acknowledge and thank the how to use BIM with NEC3 Contracts project
team for their input to this guidance.
Members of the project team include:
P. Higgins, BSc, CEng, FICE, FCIArb
P. T. Cousins BEng, Dip Arb, CEng, CArb, MICE, FCIArb
 ®

Introduction
This guide is produced to help contract compilers incorporate the requirements of
Building Information Modelling (BIM) into NEC3 contracts. It also includes guidance on
using the recently published CIC (Construction Industry Council) BIM Protocol.
BIM is a process for creating a ‘model’ which represents all the details of an asset in
digital form. It can be applied to all forms of assets, not just buildings, and the model is
intended to be created and used in the design and construction phases, and further
used during the maintenance/management of the asset following construction. BIM is
designed to improve collaborative working for project teams throughout the lifecycle of
the asset. Its ultimate aim is to reduce the time and waste taken to build and manage
the asset as well as ultimately reducing the cost.
The use of BIM not only brings specialist technical requirements in the contract, but also
raises issues of rights and liabilities of the various parties involved. The liability of each
party for the work they have carried out in creating the model, and control over the use
of material created by the various parties involved are different from those in contracts
which do not use this process. Accordingly, care needs to be taken to incorporate the
requirements for BIM into the contract.

Incorporating BIM into NEC3 contracts

BIM can be used by all parties to a contract. The model is normally prepared during the
design and construction stages, and thus the forms of contract used during these stages
will need to incorporate the requirements for creating the model.
Several parties are likely to contribute towards the preparation of the model.
Consultants, Contractors and principal Subcontractors may all have to create their
material in digital form suitable for incorporation into the model of the asset.
The NEC3 contracts likely to be used during the creation of the model are the
. NEC3 Engineering and Construction Contract (ECC), the
. NEC3 Engineering and Construction Subcontract (ECS) and the
. NEC3 Professional Services Contract (PSC).

The short versions of these contracts will not normally be suitable for use by those
responsible for creating the model because of the additional risks and complexities that
creating the model adds to the process. Contractors, Subcontractors Consultants and
Subconsultants appointed using short forms may, however, be required to provide
information in a digital format such that it can be readily added into the model. Such
requirements will be covered by the provisions in the Works Information (ECC)/
Subcontract Works Information (ECS) or Scope (PSC) in their contracts. The short forms
of contract could be used where appropriate for the appointment of Contractors,
Subcontractors or Consultants who are using the model as a tool in their construction
work or future design tasks.
The Facilities Management (FM) Contractor or equivalent appointed under the NEC3
Term Service Contract, responsible for the maintenance and management of the asset
following construction is unlikely to be involved in preparation of the model. Where the
TSC Contractor has been appointed at an early stage to work with the design and
construction team, they may well provide input to the model, but normally either the
Consultant or Contractor would be responsible for adding that into the model. In the
event the TSC Contractor was to be involved in creating part of the model, the following
points would also apply to their contract.
A Supplier appointed under the NEC3 Supply Contract would not normally be directly
involved in creating the model. (Where the Supplier was involved in significant

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installation work, normally the ECS would be used). The Supplier delivers the goods to
the Contractor, and would be required to provide information concerning their product
in digital form. These requirements would be incorporated into the Goods Information in
their contract. The Contractor would be responsible for adding the Supplier’s
information into the model.
Many organisations have their own, or have adopted, standard protocols for BIM.
This will usually consist of parts which set out
. the technical requirements, i.e. what the parties are required to do and what
constraints are imposed on them,
. the parties rights to use materials they have created or others have provided, and
. the responsibilities of each of the parties for any problems that may arise whilst
preparing the models.
The parts which set out the technical requirements should be inserted into the Works
Information/Subcontract Works Information or Scope. They should clearly establish who
is to provide what information, within what timescale and in what format and detail.
The parts that deal with rights and liabilities of the parties should be inserted into the
contract by the use of suitably worded additional conditions of contract (Z clauses).
The Project Manager (ECC) or Employer (PSC) is able to alter the technical requirements
by instructing a change to the Works Information or Scope, such as including any
revisions to a published protocol. He is also able to instruct the Contractor or
Consultant on how to deal with any ambiguity or inconsistency which arose between
the protocol requirements and other sections of the contract. However the rights and
liabilities of the parties cannot be changed without agreement between the parties; this
part of the protocol must not be added in to the Works Information or Scope as it
would give the Project Manager or Employer the right to change those rights or
liabilities.
Incorporation into the Works Information, Scope, or Z clauses can be by way of
referencing the relevant parts of the protocol, or by repeating the relevant wording from
the protocol. In either case care needs to be taken that the terms used in the protocol
are compatible with the terms in the NEC3 contract being used. Examples of this include
‘Project Team member’, who would be the ‘Contractor’ or ‘Consultant’ and
‘Agreement’, which would be ‘this contract’. If the terms are unclear, additional
definitions may need to be included in the Z clause.
When incorporating a protocol it is important to identify exactly which version is to be
used. The use of terms such as ‘the latest version’ should be avoided as they can result
in different versions being incorporated into different contracts on the same project.
That inevitably leads to confusion and errors.
When changes are made to the rights and liabilities of the parties, careful consideration
is needed as to how the Contractor or Consultant can recover costs caused by failure of
the Employer or others to carry out work correctly or within the required timescales. In
those cases it may be necessary to incorporate additional compensation events into the Z
clause to deal with such matters.
To emphasise the collaborative nature of the work involved in preparing the model, the
Employer may wish to consider incorporating secondary Option X12 into the contracts
with those organisations who will be preparing the model, and require this Option to be
used in any applicable subcontract.
Following construction of the work, the model would have been completed and should
provide all information required for any subsequent maintenance/management of the
asset. The Contractor appointed under the TSC may well be using this model in
providing the service, but may also be required to modify the model if he carries out any
repair, replacement or enhancement of the asset. The Contractor would normally be

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required to follow the requirements of the applicable protocol, but since other parties
would not be involved, the issues of rights and liabilities resulting from the involvement
of several parties in creating the model would not arise under this contract. The technical
requirements for modifying the model would therefore normally be dealt with through
the Service Information (TSC).

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Using the CIC Protocol

The CIC published their BIM Protocol for use in the UK in March 2013. This was
developed to provide standard terms and procedures in preparing Building Information
Models, to implement the UK government BIM strategy.
A copy of the Protocol is available from the CIC website at www.cic.org.uk.
Suggested additional clauses are provided for each of the main NEC3 contract forms
likely to be used for preparing parts of the BIM. These should be included as additional
conditions of contract under Option Z of the respective contracts. It is unlikely that the
short forms would be appropriate for appointing Consultants or Contractors to prepare
parts of the model, but if exceptionally that were the case, similar provisions would need
to be included in those contracts.
The Protocol includes terms which modify the conditions of contract of the NEC3
contracts, and include other provisions which properly form part of the Works
Information (ECC) or Scope (PSC). As those clauses forming part of the Works
Information or Scope may well be amended during the contract, they need to be
properly incorporated into the documents in order that the amendments can be
instructed, and those instructions treated as compensation events. Similarly, those parts
which modify the conditions of contract or impose additional contractual obligations and
liabilities must be excluded from the Works Information or Scope as the Employer or
Project Manager should not have the power to change those unilaterally.
CIC guidance for the Protocol recommends identifying the Protocol as a contract
document without drawing this important distinction. The additional clause provides that
only those parts of the Protocol which should be amended can be modified by the
Employer or Project Manager under the contract. This is achieved through clause 2,
which identifies the specific clauses of the Protocol and allocates them into the
appropriate category.
As this clause incorporates the appropriate provisions of the Protocol into the Works
Information by reference, clauses 3 and 4 of the Protocol do not need to be separately
identified within the Works Information or Scope. However, the Works Information or
Scope must include the completed forms appended to the Protocol for the Model
Production and Delivery Table and the Information Requirements, together with any
other information the Employer wishes to specify to be used in preparing the Models.
The Protocol makes it clear in clause 2.1 that the terms of the Protocol take priority over
any other document. Thus, when there is any ambiguity or inconsistency between the
Protocol and other documents, the provisions of the Protocol must be followed and not
those in the other document. It may still be necessary for the Project Manager or
Employer to give an instruction to change the Works Information or Scope if it contains
any contradictory provisions. That instruction would be a compensation event.
A number of definitions are included in the Protocol. These apply to the provisions of the
Protocol only, and care should be taken where they may conflict with any terms used
elsewhere in the Works Information or Scope. Note, for example, that the defined term
‘Material’ in the Protocol has a more restricted definition than that of ‘Plant and
Material’ in the ECC.
Additional compensation events have been created through subclause 3 of the
additional clause.
The first is to deal with the case where the Consultant or Contractor is unable to comply
with the requirements for providing a Model because of events outside their reasonable
control, as provided for in clause 4.1.2 of the Protocol. This applies a subjective test as to
whether or not the compensation event has occurred, and the Employer or Project
Manager will need to consider all the circumstances at the time in determining whether

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to agree the event is a compensation event. The Protocol is silent as to the

consequences of such an event; under the NEC3 contract the Consultant or Contractor
would be entitled to any additional cost and time required to complete their work as a
result.
The second deals with the difficulties that would arise if the Employer was obliged to
revoke the sub-licence provided to the Consultant or Contractor to use information
provided by others in their Models. If such a sub-licence were revoked, the Consultant or
Contractor would be obliged to remove that information from their Model. In that
situation, the revocation would be a compensation event, and any costs or delay arising
from the revocation of the licence would be met through this additional compensation
event. In order to complete the work it would be necessary for the Employer or Project
Manager to issue an instruction on how to deal with the issue, which is likely to be a
compensation event in itself.
Clauses 5 and 7 of the Protocol deal with respective liabilities of the parties for the work
they carry out. These create additional ‘Employer’s risks’ under the ECC, and reduce the
circumstances covered by the indemnity provided by the Consultant under the PSC.

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ECC additional clause

CIC BIM Protocol

1 In this clause, the Protocol is the CIC Building Information Modelling Protocol,
first edition 2013. Terms used in this clause are those defined in the Protocol.

2 Clauses 1, 2, 5, 6. 7 of the Protocol are additional conditions of contract.

Clauses 3 and 4 and Appendices 1 and 2 of the Protocol are Works
Information.

3 The following are compensation events.

. The Contractor encounters an event which is outside his reasonable control
and which prevents him from carrying out the work specified in clause 4.1.2
of the Protocol.
. The Employer revokes a licence granted under clause 6.6 of the Protocol.

ECS additional clause

CIC BIM Protocol

1 In this clause, the Protocol is the CIC Building Information Modelling Protocol,
first edition 2013. Terms used in this clause are those defined in the Protocol.

2 Clauses 1, 2, 5, 6. 7 of the Protocol are additional conditions of subcontract.

Clauses 3 and 4 and Appendices 1 and 2 of the Protocol are Subcontract
Works Information.

3 The following are compensation events.

. The Subcontractor encounters an event which is outside his reasonable
control and which prevents him from carrying out the work specified in
clause 4.1.2 of the Protocol.
. The Contractor revokes a licence granted under clause 6.6 of the Protocol.

PSC additional clause

CIC BIM Protocol

1 In this clause, the Protocol is the CIC Building Information Modelling Protocol,
first edition 2013. Terms used in this clause are those defined in the Protocol.

2 Clauses 1, 2, 5, 6. 7 of the Protocol are additional conditions of contract.

Clauses 3 and 4 and Appendices 1 and 2 of the Protocol are Scope.

3 The following are compensation events.

. The Consultant encounters an event which is outside his reasonable control
and which prevents him from carrying out the work specified in clause 4.1.2
of the Protocol.
. The Employer revokes a licence granted under clause 6.6 of the Protocol.

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