The construction industry continues to wait for the release of AS11000 General Conditions of Contract which will replace the two current suites of Contracts AS 2124:1992 and AS 4000:1997.
Public comment on the draft AS11000 released in 2015 was overwhelming, and as a result, a new draft will be open to public comment in the coming months that will hopefully reconcile the proposed changes received.
The draft AS11000 has been designed to significantly improve contract administration and allow for an early warning procedure to better identify and balance the risk allocation. The intention is also to reduce the cost of management and administration of contracts.
The general premise of the changes also focuses on clarifying and simplifying the language and requirements, namely business days calculations in relation to security of payment claims, and some general administrative changes allowing for changes in technology to benefit the process, namely service of notice by email.
While the 2015 draft AS11000 initially made this small step in the direction of technology by acknowledging email as a communication method, it does not recognise any forms of digital data, online document management or web collaboration and communication methods.
Coincidentally, on March 15, 2016, the House of Representatives Standing Committee on Infrastructure, Transport and Cities tabled the Smart ICT Report on the inquiry into the role of smart ICT in the design and planning of infrastructure. The Standing Committee “recognised the possibilities inherent in new technologies and systems.”
“These technologies, if used effectively, have the capacity to transform the design, construction and management of infrastructure assets; the management and use of existing assets; and the operation of transport, communications, energy and utility systems,” the committee noted. “These technologies are transformational, with the capacity to increase the productivity of the Australian economy. In order to achieve this, however, governments and industry must be aware of the potential of smart ICT, and must invest in the technologies, skills and systems to make the transformation a reality.”
In an environment that does not acknowledge modern forms of information, it is difficult for innovation to exist because one party can deny access to digital data on the basis that the general conditions are silent about it and its use versus paper.
That recognition need only consider redrafting of Clause 8 Discrepancies or a simple change like the introduction of a definition for information to the effect of “Information: a reference to ‘information’ includes information, representations, statements, data, samples, calculations, assumptions, deductions, determinations, drawings, design, specifications, models, plans and other documents in all forms.”
The incorporation of Building Information Modelling (BIM) is a more all-consuming task, but it is nevertheless needed because there is currently no statutory or common law framework around the use of BIM in Australia. If Australia is to follow the UK’s lead in accordance with Recommendation 7 of The Standing Committee, the simplest way to define and protect a party’s rights and obligations when participating in a BIM project is to develop a bespoke BIM protocol and annex it to an existing Australian Standard Contract.
If AS11000 does not consider BIM in this new draft, there is a risk that the new standard will provide a platform for the development of a series of protocols by principals and clients. This will exacerbate the onus on contractors and consultants in having to satisfy a range of different protocols when working on multiple projects at any one time.