Legal Implications of Technology Implemented During COVID-19 Pandemic

There are several legal issues to consider when implementing new building technologies.
By Brent Meyer
April 5, 2022

Prior to the COVID-19 pandemic, the construction industry’s implementation of new practices and technology was comparatively slow moving. COVID-19 brought supply chain issues, social distancing requirements, and work restrictions resulting in expensive and prolonged project delays. The crisis caused by the pandemic required the construction industry to adapt—and to adapt quickly.

As addressed in the article Jobsite Tech Advances Here to Stay in the Wake of COVID-19, the industry adopted practices which included the use of drones, mobile technology and more stringent use of project management software. The pandemic’s impact continues to influence the industry in these practices, as well as the use of other technological advances. Adapting to the pandemic set the movement of using new technology, which appears to be here to stay.

Technology Trends Here to Stay

Prefabrication, also known as modular construction, although existing prior to the pandemic, was particularly useful during the pandemic and was used around the world to build COVID-19 hospitals offsite. Using a prefabrication process versus on site construction allowed the industry to continue working on projects despite governmental limitations on traditional operating methods. The ability to construct components of a structure offsite was not only useful for health, safety and legal compliance, but also for efficiency and practicability. Prefabrication is a technological advancement that is predicted to continue well beyond the COVID-19 pandemic. Because of its efficiency, it minimizes risk to workers and accelerates processes to keep up with demand, particularly for residential housing.

The use of “smart” building technology was accelerated by COVID-19 and is anticipated to continue to play a large role in the industry post-pandemic. Two examples are digital twin technology and five-dimensional building information modeling (5D BIM). Digital twin technology, first developed by NASA, uses real-world data to create simulations of performance. In the construction industry this allows assurances that project designs will be successful during implementation and operation in the field. 5D BIM is a similar but distinct technology which creates virtual modeling to demonstrate how changes impact the appearance, schedule and cost of construction.

The intent of 5D BIM is to create visualization during the design or prototyping phase of a project whereas digital twin technology is intended to be used for a building’s operational phase. Both these technologies allowed owners to design, build, and test building elements when social distancing and other restrictions limited how this was traditionally done in-person and on-site. The industry has learned processes can be done more effectively and efficiently through the use of technology—smart building technology being no exception.

Legal Implications

While owners and contractors alike do their best to avoid legal action relating to construction projects, at times it is unavoidable. Implementing use of technology not only increases efficiencies for collecting important data but can offer support if prosecuting a legal claim is necessary or can provide liability protection when defending against a claim. For example, technology, which documents critical steps in the progress of a project or provides real-time data, may provide important information on fault or liability.

There are several legal issues to consider with the implementation of smart building technology, most notably issues regarding the allocation of risk. Important in any construction contract is a delineation of the roles and responsibilities of the different parties. When smart building technology is used, this should include which party holds responsibility for insuring input of information is accurate and timely. There should also be express language to guide the open sharing of information between the parties. Inherent in use of this type of technology is collaboration between parties that have traditionally held siloed-off roles. While there are many benefits to a more collaborative and transparent process, blending roles and responsibilities can lead to confusion, which makes setting expectations on the front-end through thoughtful planning and contracting essential.

What started as a response to a global pandemic, has now become a crucial part of the construction industry. Embracing technological advances has successfully allowed the industry to adapt to current situations and environment. While the pandemic may not last forever, it appears that the movement to accept and use new technology is here to stay.

by Brent Meyer
Brent Meyer is in Husch Blackwell’s Omaha office. He practices in the construction and design group of the firm’s real estate, development and construction industry team.

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