Building a “Smarter” Project in a “Smart” World:  Emerging Technology in the Construction Industry

By: Cassie Nielsen, Associate

President Biden’s $1.2 trillion Infrastructure Investment and Jobs Act aims not only to improve the United States’ outdated infrastructure but also increase investment in digital construction and design.[1]  Technological advances promise increased efficiency and reduced costs.  Construction participants and attorneys are wise to examine the impact—and risks—of emerging technology on pending/future contracts and projects.

The following emerging technologies are making their mark in the construction industry and forcing contractors and lawyers to abandon dated practices in favor of cutting edge:

  • Building Information Modeling (BIM): Building information modeling involves constructing intelligent, three-dimensional digital designs of projects (or facets thereof) based upon prior input data. Such method allows more of the design work to be completed in advance so that less changes are necessary at the project jobsite.  BIM has the additional advantage of producing and storing an integrated, digital set of building plans which can then be modified for use on future projects.  BIM is a shared resource and only as effective as the data provided to it.  Accordingly, care must be taken at the contractual stage to control the entry of data to the model as well as mitigate risk and assess liability for any inaccuracies.  Ownership of the data (particularly where supplied by a third party), model, and eventual plans as well as obligations for the protection of data and other intellectual property should all be clearly delineated in the parties’ contracts.
  • Artificial Intelligence (AI): Within the construction industry, AI is generally divided into two realms—machine learning and deep learning. “Machine learning” focuses on the ability of technology to receive vast amounts of data, “learn” from embedded algorithms, and then offer predictions.  “Deep learning” is a subset of machine learning based on the neural network construction of the human brain.  Driven by data, both machine and deep learning receive and monitor data in real time, predicting outcomes, and supporting project workflow.  In an industry plagued by labor and materials fluctuations/shortages, AI has the ability to better plan for labor and materials distribution(s) across one or more jobs, monitor site conditions, and continually evaluate and predict job progress to optimize projects and deploy real-time solutions.  Such can prevent project cost overruns, use historical data to predict completion timelines, provide design alternatives before project costs become an issue.

Much like BIM, AI is only as good as the data fed to it.  As AI becomes more prevalent in the industry, attorneys are wise to ensure their client’s construction contracts contain sufficient risk allocation provisions specific to the technology utilized and that duties regarding updating of data (for change orders, amendments/modifications, etc.) are set forth.

  • Digital Twins: Digital twins are digital replicas, and effectively virtual models, of a construction project. By combining information from multiple sources (scanners, sensors, other IoT devices, etc.), the digital twin can effectively learn from multiple data sources, automatically adjust to the changing real-world dynamics, and enhance established BIM by providing a living model of the physical building(s)/environment(s) it represents.  Digital twins optimize the building process by allowing architects, engineers, and contractors valuable insight into both external factors (e.g., building/project orientation, etc.) and internal metrics (such as stressload).  From an engineering and design perspective, the technology allows experimentation and analysis of design outcomes before breaking ground or making physical changes to the project.  When combined with augmented and/or virtual reality, digital twins enable project participants to safeguard against design defects by providing a hands-on, virtual view of the eventual physical environment

 Far from the lore of flying cars, sentient robots, and replacement of the human workforce, modern technological advances in construction offer optimization at all levels, augmenting human skills while reducing expensive errors and overall project costs.  Although black letter law has arguably been outpaced, with careful collaboration between lawyers and their construction-based clients, risks may be mitigated and liabilities managed to allow technological innovation to shine.  If technology can build it— the industry, together with its lawyers, will come (just ask Alexa)!

DISCLAIMER: These materials are intended for general informational purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. Instead, you are urged to consult counsel on any specific legal questions you may have concerning your situation.

[1] H.R. 3684 (2021)