New tools are bringing innovation to old processes.

High-speed computing and communication methods have created opportunities for the development of design and construction tools that go beyond improving the efficiency of the design and construction process. This new generation of technology-based products drive change to the design and construction processes themselves and trespass on what has traditionally been thought of as independent professional judgment. As these tools are being adopted and implemented, there are and will continue to be evolutionary changes in the way buildings are designed and delivered. These changes necessitate reconsideration of the legal framework within which the industry now operates. Let’s look at the dynamics of that evolutionary process.

Traditional Project Delivery Vehicles

Project design and construction are generally defined in time and space and occur in a set sequence. Design-build, fast track, and other alternative project delivery systems compress the project delivery timeline and allow for some overlap of performance; nevertheless, the process remains largely linear.

It should come as no surprise, then, that the contractual framework for projects also involves linear, or more accurately, hierarchical relationships. Traditional design and construction contracts are structured with lead contracting with downstream chains of subconsultants or subcontractors.
Advancing technology is challenging these very fundamental concepts. Tools that improve the efficiency of traditional project delivery vehicles are setting in motion evolutionary changes. There is no stopping this transition as technology converges with an industry rife with inefficiency and ripe to adopt change.

Technology Adoption Drivers

Historically, the tools of design allowed one to more efficiently perform the mechanical aspects of the design function. For instance, the slide rule of the 1960’s succumbed to the handheld calculator of the 1970’s, which resulted in dramatic improvements in the speed and accuracy of calculation. Similar improvements accompanied the development and use of computers that delivered computer-assisted design (CAD). Basic CAD programs vastly improved the speed and accuracy of drawing preparation and revision. The speed at which these technologies have been adopted over the past 20 years was dramatic.

Improvements in design or construction performance translate into a competitive economic advantage, which is critical in an industry that operates on razor thin margins. To the extent that a given technology, technique or methodology can translate into real savings during performance, the industry adopts such advancements passing savings onto its clients. This economic driver will promote and sustain technologies which demonstrate meaningful value propositions.

Liability associated with failure to adopt effective technologies is also a driver. Design professionals do not guarantee perfect designs. Instead, like doctors, lawyers, accountants or other professionals, designers must exercise reasonable care. Failure to meet this standard of care is negligence.

The standard of care however is a moving target over time and circumstance. Accordingly, adopting advancing design techniques and more sophisticated tools is a necessary attribute to professional practice. Adoption of those techniques and tools, however, face competing and conflicting interests as they relate to liability. There is a natural tension between adopting approaches that have yet to be accepted across the industry as against the design quality improvements that such approaches promise to deliver. If a given technology could have avoided injury under the circumstances of that case, it is more likely that a designer would be held liable for failure to adopt such technological advancement.

Conversely, if a technology proves unreliable and results in injury, a designer may also be held liable. This dichotomy is generally resolved in the cautious adoption of technology and tools that eventually become proven and an accepted part of the care, skill and diligence that the design professional must exercise in practice.

The Changing Paradigm

The above analysis recognizes that the design and construction functions as well as the life cycle operation and maintenance function of a completed structure are separate and largely standalone processes that will independently adopt technology that streamline efficiency. This traditional paradigm results in project information that, for the most part, is non-transitory.

For example, design information within the control of the designer may not be leveraged with the construction information within the control of the contractor. This results in the vast majority of the project information, much of which would be invaluable to facility operation and maintenance, never making it to the owner’s control and use. What happens then when technology collapses the transitional nature of the design and construction process, making project data, in effect, transparent to an entire project team? What happens when the data itself becomes “dynamic”; going beyond dimensional and performance information to pricing, marketing, scheduling, and moreover, to inherently recognizing and adapting to interrelated design elements? What happens when the tools of technology no longer enhance the performance of professional services but actually perform professional services themselves? The answer lies in a necessary and evolutionary change in the process itself.

Technology Evolutions

Two examples of technologies driving fundamental process changes include seamless and transparent communication as well as intelligent objects.

Project websites are illustrations of highly efficient and seamless project communication. A project website allows project team members to efficiently communicate between and among each other and to retrieve project information subject to a protocol of security attributes defined for that information. This technology is promoted as one which supports the traditional flow of project information and acts much like air traffic control of data among each tier of the various project teams. Project team members need only log onto the site’s address and input the appropriate password to have access to project information consistent with security attributes established for that member.

This technology models existing workflow processes and the security attributes inherent in those processes yet has the potential for making all project information truly transparent. Such a comprehensive and transparent design and construction information library would be an invaluable resource through the construction and the operational life of the building.

To date, project based website technologies have not revolutionized project management as originally promoted. Instead, many of the leading companies of these technologies have failed in the face of a glacially slow rate of adoption, and a strong industry reluctance to move from paper based communications to paperless offices. Make no mistake, however, that the value proposition to an owner for seamless and transparent information is compelling. For, at the end of the day, it is the owner who pays for this information no matter who may possess it within the team and who can leverage that information through the lifecycle of the facility.

Variously referred to as 4d CAD, object oriented design or model based solutions, data associated with building techniques, materials and equipment is being coupled with sophisticated code that manipulates, integrates and coordinates that data into design solutions. In effect, these bundles of information or objects can design themselves and in so doing, the design function is not only streamlined but also, to a large extent, eliminated.

A couple of early examples of intelligent objects focus on changes to the designer’s function. For example, parametric building technology from Revit (http://www.revit.com) models buildings with intelligent building components. Each component’s data is integrated with all other interdependent components. Hence, a given wall design is captured in a component that will change the wall’s geometry to accommodate a design change within the building. With each change, the technology allows all related interdependent design changes to “ripple” throughout the building and be captured on design documents. This allows for instantaneous creation and revision of plans, elevations, sections and other elements.

HVAC Solution (http://www.hvacsolution.com) is another example of intelligent object technology. Whereas Revit models the design function for building skills, HVAC Solution models hydronic component design. A designer need only calculate loads and enter basic data for the software to generate a design from a database of component information. Each system component, such as piping, fans, chillers or pumps, is intelligent. A change in one component will cause a change in all other interdependent components. A designer need not redesign. Rather, it leaves the software to select and redesign components.

The use of intelligent objects to model the design function will be integrated into the construction and facility management functions. Such integration requires expanding the software code and model to consider scheduling, pricing, material availability, maintenance, and replacement data. Conceptually, a designer/constructor/owner could select or change a building component causing a cascade of information to transparently flow to and between trade contractors, suppliers, subconsultants, building department officials and any other interested project team member. The designer/constructor/owner would instantaneously know how that selection changed the project’s configuration, performance, schedule, price, facility operation requirements, etc. True cradle to grave life cycle building design would be possible.

With intelligent object technology and seamless communication, the design function is no longer the unique domain of the designer nor is the construction function the unique domain of the constructor. Consequently, basic questions, long since settled by traditional practice, would need to be revisited and contractual relationships overhauled.

Legal and Structural Challenges

There are a number of legal and structural challenges to this new paradigm. Many of these challenges reflect the fact that the law is not prospective and imposes traditional concepts and precedent on the unprecedented problems and challenges of rapidly advancing technology. For example, with seamless communication technologies, the design function would take place over numerous jurisdictions at different times by different professionals, all working and developing a common set of electronic design documents.

This is particularly problematic with respect to the standard of care expected of a design professional in that this standard is ordinarily articulated differently from jurisdiction to jurisdiction. Since the design could take place anywhere in the world at any time and continuously throughout the design and construction period, an act of negligence or tort could also take place virtually. Hence, a virtual project may subject a designer to the law of numerous jurisdictions.

A common sense approach to this jurisdictional nightmare is to decide by contract how, where, in what manner and under what law disputes are to be resolved. For example, a project team could decide to arbitrate all disputes as between them in Massachusetts, under California law with a single arbitrator under a set of coordinated contracts. Such contractual remedies are only effective as against those who agree to these terms. Hence, the jurisdictional quagmire remains with any third-party claim.

As discussed above, intelligent objects package code and data in a manner that replicates the design function. In effect, an intelligent object designs itself supplanting the traditional role of the designer. The designer then needs only select the appropriate components of the design allowing the code inherent to the object to create the design. This, of course, raises the issue of the software supplier practicing design without the appropriate licensing. It also raises a more fundamental question of whether the design function then becomes a product rather than a service.

Software has traditionally been looked at by the courts as a product thereby allowing manufacturers to disclaim warranties. As a fungible product the purchaser’s use is subject to “shrink wrap” or “click wrap” contract terms. For example, the Washington State Supreme Court enforced a disclaimer with respect to a bid pricing error allegedly caused by software defects.1 Eventually, the law will catch up to the fact that this technology is more than a simple tool of design and instead is a service creating a custom design.

The traditional paradigm held the supplier at the low end of the contractual “feeding” chain. Under most circumstances, the supplier had a weak contractual bargaining position with respect to upstream contractors. With adoption of seamless communication and object-oriented design, there will be a considerable reversal of this balance. An information centric project will focus not only on who is providing services but also on who holds the information. There is little doubt that, for most projects, the most critical information on pricing, delivery, scheduling, and integration with other materials and equipment all resides with the supplier. This will cause a major overhaul in the nature of standard contracting necessary to accommodate an information centric project.

Supplier data integrated with intelligent objects will also marginalize certain design and construction administration services. With seamless communication technology, these objects will simply eliminate “middlemen” in the supply chain thereby realizing significant procurement related savings. If information on materials and equipment as well as the design and construction integration function can be bundled and transmitted directly to the project decision-maker, there is little need for middleman representation. The downside of this trend is that the specialized expertise of manufacturer’s representatives, a major resource and to some extent protection to designers, will become lost.

The information centric project utilizing intelligent objects and models will also call out for project knowledge management. A project knowledge manager would serve to integrate owner needs, designer criteria, the construction market and facilities operation market into data and objects, instantaneously moving information between and among the project team member. Information will flow between all team members in real time delivering projects through an interdependent versus staged process.

Since information would be centric to the project, hierarchical contractual relationships would require major overhaul. Design and construction services would become contractually incidental to the information and data associated with those services. Information and intelligent objects would be as valuable a long-term project asset as the structure itself. Procurement would become seamless and instantaneous.

Lawyers must become project advocates and structure agreements that promote collaboration versus the individual and adversarial interests of parochial team members. New contractual arrangements centering on the delivery and leverage of project information need to be created. Contracts themselves would become code, changing with project changes, digitally signed and authorized and, in effect, intelligent objects.

A new generation of technologies goes well beyond making inherently inefficient workflow processes more efficient. Major advancement in high-speed computing capacity and the ubiquitous nature of Internet communication make this possible. Technologies will, by evolution, change the paradigm within which the industry functions, creating performance far more efficient than the traditional processes we see today.

These technologies recognize that project information is the greatest asset to the design, building, operation and maintenance process. Efficient transfer and utilization of that information without confinement to linear or hierarchical structures becomes the goal. Intelligent objects will displace the design and construction administration function causing commoditization of professional services at enormous increases in efficiency. There will be a period of legal instability during this transitional period. A new project team structure will emerge focused on best leveraging the project’s information at all levels. Traditional design and contracting practices will become irrelevant. No longer will the industry drive the technology, but technology will drive the industry.

About the Authors: Richard K. Allen is a partner in, and Leah A. Rochwarg is a member of the Design/Construction Group of Gadsby Hannah LLP.

1M.A. Mortenson Co. v. Timberline
Software Corp., 998 P.2d 305 (Wash 2000).