Embracing Innovative Technology in the Construction Industry

The construction industry has seen an emergence of the use of technology to explore more innovative ways to design, improve efficiency, and lower costs. The annual Construction Week Leaders in Construction Summit, that took place last month in Dubai, brought together industry experts to share their insights on the latest trends and technologies being embraced by the sector.

Whilst the industry has been revolutionised by the adoption of new technologies which bring operational and competitive benefits, there are risks involved and the legal implications of such risks must be considered by all contractors, engineers and architects prior to implementation.

3D Printing Technology

The industry is beginning to see the adoption of 3D printing in construction. This has the potential to shift the industry in numerous ways including by:

• enabling architects and engineers to create more complex structures;
• reducing waste and CO2 emissions;
• enabling engineers to design more energy-efficient buildings, ultimately reducing costs for the end-user; and
• lowering costs (both labour and material).

In 2022, the world’s largest 3D printed structure was constructed in Dubai. The Dubai Municipality building was constructed entirely on site, with no additional assembly required. The Dubai government hopes to use 3D printing technology to construct 25% of its structures by 2030 which is expected to decrease construction costs by 50-70%, labour expenses by 50-80%, and construction waste by up to 60%.

Whilst the sector is only in its infancy, international contractors are looking at ways to implement this technology. However, with the advent of new technology, a new set of liability issues also arise, all of which are yet to be tested. For example, in cases of defective workmanship it remains unclear whether liability would rest with the contractor, the 3D designer, or the manufacturer of the 3D printer. Additionally, how would liability be apportioned for any delays which arose to rectify such defects. Further still, there is an ever present risk that as construction technology becomes more reliant on computer inputs, there is an increased risk of a cyber-attacks.

Contractors and consultants must ensure that prior to the adoption of 3D printing technology, the responsibilities for such issues are clearly dealt with under their contracts. Further, construction professionals employing the use of 3D printing must consider whether liability for design defects or cyber-attacks are covered by their professional indemnity and cyber risk insurance policies.

BIM Models

Building Information Modelling, or BIM, is used as a process for creating and managing information on a construction project. It allows for architects, engineers, contractors and other construction professionals to plan, design, and construct a structure within one coordinated 3D model, which then acts as a digital representation of a building’s physical and functional characteristics.

BIM Level 2 is characterised by collaborative working, while BIM Level 3 is distinguished by its fully integrated web-based system, that allows for all construction professionals involved in the Project to access and modify the same data in real-time.

BIM, at any level, was first mandated in Dubai in 2013, and its application is now required to be used in relation to the architectural and mechanical works on the following types of projects:

•  buildings above 20 floors
  buildings, facilities and compounds with areas larger than 200,000 square feet
• special facilities such as hospitals and universities;
•  government projects; and
•  buildings and projects that are requested from a foreign office.

The construction industry across the world has benefited from the introduction of BIM, with BIM models being used on large scale projects to identify problems before construction begins, optimise building design and reduce the risk of errors and delays.

There are no particular professional indemnity risks associated with BIM Level 2, however, we know that most insurers have expressed the risks associated with BIM Level 3 and actively exclude it from coverage. BIM Level 3 blurs the lines of responsibility given the access that each project participant will have to make changes to the same project model, and this naturally increases the risk and makes it difficult to apportion liability.

Notwithstanding these risks, BIM Level 3 is touted as a way in which construction of the future may help the industry in the GCC achieve its goals to improve efficiency, and lower costs.

If BIM Level 3 is going to be adopted, construction professionals should:

• ensure the contract addresses and mitigates how liability will be apportioned in the event of certain risks arising;
• includes a BIM protocol that is understood, agreed and can be implemented across the contractual chain;
• consider carefully monitoring and in some cases restricting, access to the model.

Digital Twinning

Digital twinning involves creating a virtual replica of a physical asset using real-time data from sensors and other sources on the physical asset. The digital twin is then used to simulate real-life scenarios in order to optimise the performance of the asset in the changing circumstances.

The use of a digital twin in the construction sector can have many significant beneficial impacts. A better understanding of the physical asset can lead to a cost reductions, waste reduction, increased energy efficiency, construction efficiency, and design optimisation. Digital twinning can also be used to monitor the performance of an asset, such as a building or a bridge, in real time, allowing for predictive maintenance, a reduction in downtime and strategic upgrade projects.

The use of digital twins in construction carries similar risks in terms of liability as with BIM. Contractors and consultants will require full traceability such that in the event of an error, it can be established where the liability lies.

Digital twins may incorporate copyright material, therefore, the intellectual property provisions of contracts will need to be updated to reflect the wider range of use of the data for the digital twin. Any license granted in relation to the use of the data should be for a suitably long period so as not to expire before the end of the life of the twin.

Further, construction professionals must ensure that they are complying with data protection regulations when using digital twinning technology. This includes ensuring that data is collected and processed in accordance with applicable laws and regulations.

Conclusion

It is clear that ultimately the industry will benefit greatly from the use of innovative technologies in construction. However, the adoption of such technologies has legal implications that must be carefully considered by all construction professionals before implementation. Primarily, companies must ensure that:

• Contracts are carefully drafted to address issues such as who will shoulder the risk associated with the technology and what degree of liability is a party is taking on.
• Contracts include protocols which set out responsibilities for each party to follow in the creation and management of the digital asset.
• Appropriate IP clauses are in place such that the intentions of the parties to actively collaborate can be achieved.
• They have in place adequate cyber risk insurance and appropriate measures in place to protect against cyber threats, including ensuring that data is stored securely and that access to data is restricted to authorized personnel only.
• They are complying with all applicable data protection regulations.
• Confidential data is protected. This may include the inclusion of non-disclosure clauses in contracts, or limiting access permissions so that confidential data can only be viewed by certain users.