Digital Builder

The Legal Risks and Pitfalls When Using Construction Tech — and How to Avoid Them

May Winfield Legal Construction tech expert risks speaking at Autodesk University 2020

3 Things to Learn from a Construction Tech Legal Expert

Construction technology is being deployed and adopted at record rates — particularly in this past year. A survey by Autodesk and AGC found that 40% of respondents said that they’ve rolled out new technology in the past 6 months.

And while construction tech has certainly transformed the industry, making our lives a lot easier, experts like May Winfield, Associate Director at BuroHappold, say that we need to exercise caution when using these tools. Firms need to think about their obligations and risks when handling digital data, and ensure that these are addressed in their contracts and agreements. Failing to do so could spell legal trouble down the line.

“You need to strike the right balance. For example working in the Cloud offers huge benefits towards streamlining the process and aiding collaboration and can feel like merely an improvement is the current modus operandi, but it is in fact very different using to personal computers or individually licensed software. It must be treated as a new paradigm when it comes to protecting the data and clarifying the responsibilities and the liabilities, and this must be reflected in the way it’s contracted,” says Winfield.

She adds that failing to keep your legal bases covered creates “a ticking time bomb” because without clarity at the outset, mismanaged expectations and misunderstandings inevitably lead to disputes.

The good news? Legal problems around construction technology can easily be avoided. In Winfield’s Autodesk University session titled, SSharing Data in Cloud-Based Platforms: Avoiding Risks, Liability & Disputes, you’ll learn about the potential legal pitfalls of using cloud-based platforms like BIM 360, and receive practical advice on how to avoid them. You’ll learn the correct ways to clarify parties’ rights; how to establish clear processes; and how to provide the right guidance and terms.

Access her useful class — plus hundreds more — at Autodesk University 2020. This year’s fully digital event takes place on Nov 17-20 and it’s going to be packed with sessions that shed light on the future of construction. AU 2020 is completely free this year, and it has something for everyone! Whether you’re an engineer, designer, builder, or creator, you’ll pick up some useful lessons that can help you level up in 2021 and beyond.

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Ahead of AU 2020, we caught up with Winfield to learn more about her session. Here are the top 3 insights you’ll pick up from her class.

1. Recognizing the Risks of Using Construction Technology like Cloud Platforms

The first step to avoiding legal problems in new construction technology is to be aware of the risks. As one of the few attorneys specializing in the legalities of BIM and construction tech, Winfield is well-versed in the topic, and it’s something that she’s dealt with for the past nine years.

“In 2011, there was a UK government mandate for using BIM (BIM level 2). I was fascinated by the idea of all this technology as a construction lawyer in London, so I went to the first big conference about BIM. Everyone asked ‘Why are you here? This has nothing to do with law,’” Winfield recalled.

But Winfield kept attending events and learned more about how tools like Revit worked. Then in 2014 she wrote what is believed to be the first detailed legal analysis of BIM in the UK.

“Over time, I got more and more involved in the different aspects of guidance. I co-wrote a number of documentation, including the Winfield Rock Report (co-authored with Sarah Rock), which looked into the state of legal BIM in the country.”

“So, in less than ten years we’ve gone from ‘Why are you here?’ to today in 2020, where pretty much all construction technology conferences have an element of legal analysis.”

According to Winfield, having that legal element in today’s construction conversations is a crucial step, because the space can be fraught with risks and liabilities.

Consider, for example, the potential pitfalls of exchanging work-in-progress and real-time data. Who is liable for errors or ownership of the data? She points out that the construction industry has gone through massive transformation, and we’re relying on digital data more than ever.  As such, construction pros need to take steps to protect their data and clarify the responsibilities that come with handling it.

“There’s no established legal principles of how you exchange and rely on extensive amounts of work-in-progress and real-time electronic data,” Winfield says. “There isn’t much case law. All the contracts are written in a different way. You won’t necessarily have the same standards – or sometimes even no standards at all.”

Another issue, says Winfield, is clarifying the scope and expectations of technology use. The language used to describe construction tech can be vague, and this can lead to confusion and misaligned expectations.

“Scope was very unclear when BIM first came about. People said, ‘You will do some BIM’ or ‘Use a cloud platform’ — but there may be few details beyond that.”

She says that these concepts should be hashed out in detail at the start of the process. Clarify exactly what needs to be done and by whom, and the extent to which they rely on the technology outputs.

“For example, if you have access to a lot of data from other parties on the shared cloud platform, do you have the obligation to review it? What happens if you upload data onto the cloud platform and it gets corrupted or there’s a loss of data? Who’s responsible for that? Does your  insurance policy cover that?”

“I’ve often seen people agree to things they can’t actually achieve. And that’s because their understanding and the client’s understanding of what it is, are completely different.”

Beyond these things, there are matters like copyright and clarifying ownership of designs such as 3D printing or modular offsite construction.

Not to mention, there are also issues with privacy and ensuring that all parties comply with GDPR and other regulations.

2. How to Overcome the Potential Liabilities.

So, how can you legally safeguard your team and company?

The most important step, says Winfield, is to have clear contract terms and documents.  Instead of using vague statements like “Use this tool,” specify exactly how it should be used, what you want it to achieve, and who’s responsible for it.

She recommends, as a starting point, making a list of all the things that could go wrong and who should be held accountable for each component to then work out how this solid be reflected in the contract documents.

“It will often be the things you don’t talk about, the gaps in your documents, that you’ll have an argument on,” says Winfield.

That’s why you should lay the most important things out in your contract and don’t leave anything to guesswork or interpretation.  She discusses more of what these consist of in her class.

Hashing out these things is also a matter of working closely with the other party and catching up on a regular basis to ensure everyone is aligned.

“Don’t underestimate the power of just meeting and talking, although this does need to be supported by clear documents to facilitate the discussions. You can achieve a lot by sitting around collaboratively and saying, ‘What are you doing today and next week, and what are we doing on our end?’ or ‘How do we overcome these problems?’”

3. Strategies to Implement Today for Better Risk Management

Cloud-based software and shared platforms are a boon for construction professionals, because they make it easier for everyone to collaborate and get things done.

“However, what people are often doing is effectively moving all the data from the ‘box’ of their current IT solution up onto the cloud, without transforming the way they’re working. When this happens, you don’t get the full benefits of what platforms offer, and you also don’t recognize the consequential requirements and risks,” says Winfield.

One way to mitigate this is to better manage how files and folders are shared. Always think about who has access to the data and establish practices to ensure that information is shared and used responsibly. You should also think about how to manage information access, for example when employees leave or move around the company.  Then make sure that these issues are laid out in black and white in your contract.

Taking these steps may require working closely with your legal team to explain the risks that they need to deal with in the contracts and documents, as many construction attorneys aren’t always well-versed with tools like BIM 360 or Revit.

“At the moment the industry is at the stage where they may need to go to their lawyers and say, ‘These are the problems, write me something that deals with it; you cannot assume that your lawyers will be able to do so without further guidance,’” says Winfield.

She brings up a case in the UK involving two parties who had a dispute about data access.

There was a case called Trant and Mott MacDonald, where Trant was the contractor and Mott MacDonald, the BIM Manager, was dealing with the Common Data Environment (“CDE”).  Because of a payment dispute, they removed access to the CDE for Trant,” shared Winfield.

“It went all the way up to the Supreme Court on whether access should be restored.  One of the problems was that the contract, as I understand it, didn’t deal with this issue, when parties should have access to the CDE, when they shouldn’t, when it can be withdrawn.”

Don’t Land Yourself in Legal Hot Water

It’s past time that construction professionals recognize the potential legal issues that could arise with technology, and take steps to avoid them.

While construction applications are increasingly becoming easier to use, we cannot be cavalier about how digital data is shared and handled.

So, make sure you and your team are aware of the pitfalls that you may encounter with tech use, and start getting your legal ducks in a row.

To learn how to do just that, be sure to attend May Winfield’s session at AU 2020, Sharing Data in Cloud-Based Platforms: Avoiding Risks, Liability & Disputes. There are hundreds of learning opportunities available at the all digital and free global conference. Make sure you take a look at the session list and agenda to learn more.

See you there!

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Grace Ellis

Grace Ellis

Editor in Chief, Autodesk Construction Cloud Blog

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