Thomas McLish Quoted by Construction Dive on New Tech Risks and Solutions in Construction
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Construction Dive, in its article “The Dotted Line: Mitigating the risks of technology,” quoted Akin Gump litigation partner Thomas McLish on the use of new technology in construction and the risks and responsibilities for contractors in their construction contracts and agreements.
McLish, whose practice includes representation of owners, contractors and design engineers in complex lawsuits concerning the construction of large projects nationwide, noted that the new generation of construction tools, in one sense, “are just like any other new equipment. You have to worry about allocation of risk,” noting the analogy between damage caused by computing errors and by a bulldozer.
He added that the human element means that the various responsibilities need to be defined in the agreement between the subcontractor and the vendor.
McLish also discussed the intellectual property angle, asking “If you’ve got a robot…on a project, then who owns that data when the project is done? For example, if the owner pays a contractor to use a robot to lay out each floor of my building, the robot has now learned something that might be valuable to the owner’s competitors who want the same floor layout. I, as the owner, do not want my competitor to obtain that information cost-free simply by hiring the supplier who has the robot that learned the skill on my job.”
He noted that doing work for the federal government also raises new security questions regarding software, as federal officials want to ascertain its point of origin and ensure that it is not relaying information back to a bad state actor. McLish noted that the same would be the case with robotics, automation or AI of foreign origin on construction projects.
In this regard, he said, the Federal Acquisitions Regulations requirements are important for contractors, as they need to know the origin of the tech they use or risk being in violation of federal law, adding that it’s a good idea to have subcontractors or vendors ensure that what they provide also meets these requirements.