Opinion Piece by May Winfield,
Head of Commercial and Legal
Overcoming the Challenges and Obstacles to Successfully Implement Technology, Digitisation and Digitalisation
12 March 2021
The construction industry is undergoing a significant (but rather slow…) transformation as it progresses towards Construction 4.0, with greater digitalisation and more automated production and assembly processes. The last decade alone has seen a greater use of technology within the construction industry, partly catalysed by the 2011 Government Construction Strategy, and Government white papers promoting the use of off-site construction and drones. There are now conferences devoted to discussing the use of Blockchain in construction, and 3D printing is a reality. Moreover, the unexpected events of the last year have in turn sped up this increased use of technology and innovative processes, not just to keep the industry on it’s feet during a pandemic, but in response to increased awareness of its benefits for costs, efficiency and health & safety.
The concept of a ‘golden thread’ of information for example, made possible by technologies like BIM, has now been consolidated in the Building Safety Bill. BIM has also gathered renewed interest recently with the publication of the BIM international standards, the ISO19650 series, based on the previous UK standards and which is now being implemented worldwide. Whilst Buro Happold already uses BIM as standard, we are now seeing increased awareness and requests for its use throughout the industry. The other technology concept or buzzword garnering regular attention is that of ‘digital twins’. While some people assert it is just the latest jargon in our technology ‘word bingo’, to close observers it’s clear that digital twins are developing in a more organised way than it appears; a working group that I was a member of produced the UK National Digital Twin Roadmap that is in the process of being implemented (an interactive copy can be found on the Centre for Digital Built Britain website). With this technology, and digitisation in general, comes the need for a shift in both mindset and services offered within the industry – as construction methods change, clients inevitably have new requirements or expectations. Buro Happold is known for its forward-thinking and technologically advanced ethos, and among other things has been a strong advocate of: working with clients to provide digital twins; developing specific services to support the creation of a golden thread of information; and a priority in digital consultancy. We understand that technology is revolutionising construction for the benefit of our client, requiring agile thinking to provide the most relevant service and deliverables. As one of the company’s digital thought leaders, Alain Waha, put it,: Buro Happold are “inventing the future” with clients. This can be seen in our work with the Construction Innovation Hub; our computational engineering approach allowing us to integrate design processes with technologies forming part of the construction process or finish assets; or even optimising design for offsite construction. We prioritise engagement with our supply chain toward full digital construction, as collaboration is a key part of successful digitisation and BIM, and I’ve noticed that early supply chain involvement was one of the key principles of the UK Government’s 2020 Construction Playbook. In the next period of innovation, I expect there to be a greater shift towards digital consultancy – developing best practice in defining offers, product development, contracting, leveraging data to client outcome.
To use a now common turn of phrase, we are living in unprecedented times. Whilst this has brought numerous challenges in all aspects of our lives, it has also led undeniably to an acceleration in the adoption of technology. Without the use of office facilities or face-to-face meetings, those hesitant to use video conferencing and electronic data exchange have been forced to make use of the digital space to continue to work effectively. However, whilst technology and digitisation has seemingly taken a big leap into the broader consciousness, this construction technology revolution has in fact been coming steadily for a number of years as we move progressively towards Construction 4.0. One of the major catalysts for this has been the ongoing adoption of BIM, mandated by the UK Government’s 2011 Construction Strategy. The standards and processes emerging as a result of that strategy have since been adopted or used as examples for similar efforts worldwide, finally leading to the introduction of the international digital information management standards, ISO19650, which are not just about BIM and 3D modelling but about information management for all digital data regardless of source (e.g. robotics, modular construction or 3D printing). Indeed, we at Buro Happold now provide separate information management services to clients, who realise the importance of getting the data and digital processes right, to reduce risk and ensure they get the deliverables they intended.
Even the Government’s recent Construction Playbook places significant emphasis on BIM, progressing the recommendation of the 2019 Hackitt Report. The Playbook states that contraction authorities, contractors and suppliers “should use the UK BIM Framework.” The UK BIM Framework is the overarching approach to implementing BIM in the UK, compliant with the ISO19650 standards (https://www.ukbimframework.org) and the documents forming the Framework are the result of years of work by a small and committed group within the industry – indeed, many do not realise that we worked on these seminal documents on a completely voluntary basis. Such passion and commitment to innovation has given me hope for a future construction industry that fully embraces the digital, environmental and technological advancements as ‘business-as-usual’.
Though realistically we have a way to go, we are already well on that journey – with all the well-reported benefits this brings. This wider digital movement continues to receive government support and encouragement, via the Government’s push for more modular construction and use of drones for example, and the current creation of a National Digital Twin. A lot of these technological advancements link full circle directly or indirectly back to BIM or BIM processes as they involve digital information management processes and, often, 3D models.
Legal Obstacles of Digitisation
While this innovation is a cause for optimism however, experience has taught us that implementing new procedures or tools can bring new risks and obstacles. In the early stages, one is challenged by the lack of standardization, differing understanding of the terminology and requirements or potential outputs, and lack of clear documentation. Whilst the pool of resources relating to technology and digitisation is constantly growing, many of the talks, templates and guidance are still aimed at supporting the technical implementation. This is changing as more legal and contractual guidance and standard documents are published. However, despite this, the legal and contractual side is often ignored or considered unimportant. As the area is new, there is not a mountain of case law or public disputes to prove that things can go wrong and until recently, it has been the common stance to therefore consider the risks low, which is a false correlation. However, things are starting to change. I have spent un-countable working hours and much of my ‘leisure’ time over the years seeking to highlight the importance of dealing with the legal and contractual side of digital technology, both in papers and in person. And over the years, it has been gratifying to watch the legal and construction community increasingly engage and exchange experiences and knowledge-share in this area in ways for which the legal community are not customarily known. Nonetheless, it will necessarily be some time before there will be standard legal principles and accepted legal meanings of terms, or indeed consistent legal positions on many aspects of the digital technologies being implemented within the industry, as the law (and legal community) plays catch-up in this fast-paced digital environment. So the question becomes: what do we do whilst we wait for the clarification that will come with case law, legislation and a more substantive suite of standard form documentation dealing with common aspects of digital technology?
During these early, exploratory days, we ignore the issues of risk and liability at our peril. Simply requiring a party to “Incorporate BIM” or “Design using Modular Construction” with minimal further detail, for example, is likely to – at best – lead to differing expectations or confusion that needs to be resolved during the project, with one party bearing either the financial consequences or the disappointment. Such potential misunderstandings and misplaced risk or liability can be mitigated, or possibly avoided altogether, with clear contract terms and risk mitigation processes, which must include closer collaboration between parties. A 3D model cannot tell a party whether it was built with reasonable skill and care, but a contract can tell them who should have made sure it was.
Some of the common legal issues and risks that should be considered and clarified in documentation, so all parties have a common understanding, could include: copyright and rights of use over the data; desired deliverables; and other outputs and what processes (and software) should be implemented by parties. Ultimately, the question to ask when considering whether documentation adequately clarifies the parties’ relationship with respect to the digital technology being implemented, is whether it makes it clear who is responsible for what, when and how. Start with a blank piece of paper and create a risk matrix list of all the things that could realistically go wrong or cause problems in implementing the intended digital technology and consider who should reasonably bear this risk, or how it should otherwise be mitigated. Over the years, the vast majority of the disputes I have seen develop arise from a gap or lack of clarity in the documentation – you are unlikely to have a ‘dispute’ if it is clear who is liable for a particular event or issue.
As regards implementing a uniform risk management process between parties, the international information management standard, the ISO19650 series, can prove invaluable in this regard as it seeks to standardize the processes and documentation around digital information.
We live now in an industry where Boston Dynamic’s Spot the Dog robot carries out site surveys (though it may currently be better known for its dancing on YouTube) and the Centre for Digital Built Britain (a collaboration between government, industry and academia) is working steadily towards a national digital twin (I am a part of the working group which aims to release an important digital twins toolkit on this soon – see https://www.cdbb.cam.ac.uk). Technology and digitisation are clearly here to stay, not least because they have been proven – time and again – to save time and costs, reduce waste and improve quality and health and safety – all important issues if our industry is to survive and thrive.
This all makes it sound like the construction industry is in the midst of an immediate revolution. In truth, the pace is far more leisurely, despite increased digitisation and efficient use of technology being essential for the survival of the industry, as pointed out most poignantly in the Farmer’s Report: Modernise or Die. The reason for this are many and varied, not least conservative mindset, lack of standardization and understanding, and lack of clarity in documentation. How we react to this revolution will affect how it impacts us; we must recognise that all advancements require complimentary changes. How quickly will our industry be willing to embrace advancements and progress? The recent unprecedented times may have been the catalyst for that. There are many of us in the industry working to resolve both these issues. One thing is undeniable: the future of the construction industry – and increasingly its present – is digital. Ignoring the consequential legal and contractual issues and risks will lead to misunderstandings, differing expectations and potential disputes. The longer-term clarity brought by legislation and case law will take time and is unlikely to be uniform across the world. The global construction industry cannot wait for this, and for now, clarity within documentations and clear risk-managed processes make sense. The revolution IS happening, slowly but surely, and we have at least moved beyond people claiming, as was once said to me, that all this technology is “just CAD on steroids”.
To continue the conversation join me on 17 March, 1 pm (GMT) on the Talking Digital webinar: Rethinking our cities for a post covid world. You can register for free today.