These days, there is no shortage of news about artificial intelligence (AI), prompting a phenomenon known as “AI Fatigue.” Some industries are dominated by praise and eagerness for how AI can make life easier, while other sectors lament the loss of jobs and a human touch. The truth is usually somewhere in the middle, and its impact on the world of design professionals is no exception.
The construction industry is being challenged from the top down to adopt meaningful AI that will drive greater efficiency, eliminate manual workflows, reduce redundant tasks, and most importantly, de-risk exposure on projects. Yet, AI-based technologies are making, or providing options for, more decisions and doing so in a way that is not always explicit and understood (the “black box” problem – discussed below). Thus, the purpose of this guide is to provide information that construction and design professionals may consider to promote responsible, professional, and ethical behavior with respect to the adoption and usage of AI in their businesses, including the design professional firm’s policies, culture, confidentiality requirements, and contracts with clients.
USES
Inevitably, as AI expands into new industries and erupts in existing uses, the need to assess risk and prepare for the challenges that accompany AI cannot be ignored. Contractors, design professionals, owners, and construction practitioners are wise to take stock of where AI applications have materialized in the industry and how to stay ahead of the curve. For instance, AI-powered tools can assist in comprehending contracts, generating design options, optimizing project workflows, and even predicting project outcomes.
For example, ArchiVinci enables the creation of detailed, lifelike renderings that can help in visualizing projects before they are built.
As paramount as it is for team members to fully comprehend and embrace the contractual obligations governing projects, the construction industry is known for its complex and lengthy contracts. These agreements encompass critical elements that safeguard against disputes, empowering stakeholders to navigate projects with minimized risk and increased confidence.
Emerging technologies, particularly AI-powered contract intelligence software, are revolutionizing how we review, negotiate, and comply with contracts. Such software allows for standardized review processes tailored to specific requirements, saving time and resources. This empowers professionals to decipher large portions of contracts without the need to scrutinize every detail, allowing legal teams to focus on high-value legal work, design professionals to focus more on strategic and creative aspects of their work, and more stakeholders to have agency in the contract review and negotiation process, thus leveling the playing field.
Perfecting contract details at the outset is crucial for avoiding potential hurdles throughout the project. AI’s ability to recognize recurring issues can prompt project teams to modify their practices, reducing the likelihood of contract disputes arising. By prioritizing contract compliance, project teams can mitigate risks and protect their own interests while fostering a collaborative environment for successful project execution. Nonetheless, the integration of AI in design also brings several risks that must be carefully managed.
CHALLENGES
As new as AI is to the market, even more novel are the legal challenges related directly and indirectly to AI. Given the lack of a definite regulatory framework, construction professionals may look to comparisons in other industries where AI litigation grapples with unresolved questions of liability. One major concern is the “black box” problem, where AI systems make decisions in ways that are not always transparent or understood by humans. This lack of transparency can lead to issues such as malpractice, copyright infringement, and AI “hallucinations” where the technology generates incorrect or misleading information.
Complex, human-centered areas of interdisciplinary engineering, architecture, and construction coordination require human experience to communicate and direct. Professionals have a duty to provide services in a manner consistent with the skill and competence of other members of their profession and to exercise ordinary and reasonable skill in the design and supervision of construction. AI technology is not (currently) sentient; therefore, AI cannot legally assume design professional responsibility. These responsibilities remain with the licensed engineer or design professional, who must verify and validate AI-generated outputs.
Further, AI presently cannot meet certain ethical obligations for professional engineers. These ethical obligations vary by state but generally include the obligation to ensure the preservation of the health and safety of the public. AI cannot make a legally recognized assertion that all the design work subject to the professional sign/stamp process was prepared by it or under its direct supervision, and thus, firms must remain responsible for errors or omissions in signed and stamped design documents. Interestingly, this raises questions about when it will become unethical not to use AI. This may seem an odd thought, but it is the current philosophical discussion with self-driving car technology. The logic is that technology does not have to be perfect but rather, once technology is demonstrably better at what it does than most humans, then it must be used to improve outcomes for life safety and society overall.
Those providing software products or services will have rock-solid clickthrough terms of use and licensing agreements that disclaim all liability regarding the output of those products or services, putting the onus on the end-user to verify the output. To mitigate these risks, design professionals should adopt a set of guidelines and best practices for using AI ethically and legally.
GUARDRAILS
By following best practices and staying informed about technological advancements, design professionals can leverage AI to enhance their work while ensuring the highest standards of professional responsibility. Looking ahead, construction professionals are encouraged to be considerate of mechanisms to mitigate risk in the immediate future. Here are some sample guardrails to consider:
- Continue to follow how the courts resolve questions of liability involving AI, and how that might translate in the construction industry.
- What we save in time, don’t lose in intellect. Independently test, verify, and validate responses such that they become your work product. Follow normal quality procedures as documented in your firm’s quality manuals.
- Comply with confidentiality, privacy, data protection, and export control requirements. Do not prompt with project-specific information, as information entered into Gen AI systems is not private.
- Protect your firm’s intellectual property and respect others’ intellectual property.
- Include contract language that contemplates the risks of AI.
- Evaluate how insurance coverage might be leveraged to mitigate risk (although AI-specific coverage is limited, property insurance, general commercial liability, and errors and omissions coverage can play an essential role in protecting against loss).
- Discuss with team members how and when it is used on your projects. Share what you learn.
Perhaps most importantly, impose requirements on AI use that any final decisions be made by humans, so that there is accountability and professional judgment exercised and a final “quality control check” has been made and verified.
CONCLUSION
By leveraging AI-powered tools, contractors can de-risk their projects, minimize disputes, and improve overall project success. We are already seeing versions of this in other professions, such as medicine for radiology scans, where the application of AI has improved diagnostic accuracy and patient outcomes. In the legal field, there are AI-driven document review services that can perform an initial review of terabyte-scale productions with millions of documents, allowing lawyers to focus their review on a more manageable set of documents. Still, AI should not be seen as a replacement for legal, design, or construction expertise, but as a powerful ally in deciphering and navigating the complexities of construction contracts and projects. The prudent design professional will balance the benefits of AI against its risks, using their hard-earned wisdom to leverage the AI’s knowledge for the benefit of the client and project without exposing anyone to avoidable problems.