Legal Implications of 3D Printing in Construction Loom

Aldo E. Ibarra | Engineering News-Record | June 28, 2018

Imagine a printer in the middle of a construction site programmed with a designer’s plans and specifications to build an entire home from scratch. As concrete is fed into the printing device, a technician hits enter on her computer and a 3D printer starts fabricating the structure’s walls and roof.

The final product will be created almost entirely by pre-programmed software and a movable printer injecting concrete, with no need for human construction workers. This isn’t science fiction, it’s a reality on the cutting edge of construction and technology.

The use of 3D printers in the construction industry will have legal implications that will affect owners, contractors, manufacturers and software developers.

The additive manufacturing boom has reached the construction industry and will certainly impact the way construction projects are managed. The rise of 3D printers will translate into fewer workers on construction sites, as printers will be automated and largely autonomous. Projects will be completed faster, as 3D printers will be capable of working at all hours, and will not require overtime.

Current concrete-injection 3D printers developed by WinSun Decoration Design Engineering, in China, have the capacity to print small houses, including walls and roofs, at a pace of up to 10 small houses in 24 hours.

3D printing capabilities go beyond just concrete. The team of MX3D, in Amsterdam, is currently working on delivering the first completely 3D-printed steel bridge. U.S.-based Contour Crafting is developing 3D and autonomous construction technologies that would allow for the construction of tall concrete towers, such as wind turbines, using climbing robots that would “print” the contour of the structure as they move upward.

Developers have positioned 3D printers tailored to the construction industry to work almost like robots. That is, the 3D printer is not just printing a door or a beam that will later be installed by construction workers, although that capability certainly exists, it is effectively installing the printed component in-place.

For example, in the case of steel structures, a 3D printer/robot can print a small section of steel using metallic powders and a “printer” head in a process known as direct metal laser sintering that uses a welding arm that will move along over that portion to create the next one, and so on, until the structure is completed. The result is an entirely new structure constructed wholly by the 3D printer.

Innovation and disruptive technology bring new legal risks and implications. In the context of construction defects claims, 3D printers will expose manufacturers and developers to liability and claims that would normally be attributed to human error.

Instead of human workers building a structure, a 3D printer will additively manufacture it after a pre-generated plan is uploaded to the printer’s software. How will liability be apportioned when the finished structure is found to have cracks, be uneven, improperly thick or have the wrong finish?

Whether the 3D printer is owned by the contractor, is being leased as equipment or is the equipment of a subcontractor will affect who can be found liable.

If the defect is the result of the printer’s malfunction, the contractor will have warranty and indemnity claims against the manufacturer arising out of privity from purchasing or leasing the 3D printer.

If the defect is the result of a software malfunction, that could open the developer to negligence and warranty claims for the value of the defects in the project at issue.

If there is an independent technician, acting as a subcontractor, feeding the plans into the 3D printer could also be open it to liability if the defect was the result of improperly uploading those plans or operating the 3D printer.

In addition to claims against the contractor, the owner could also have claims against the manufacturer or software developer for economic loss, even in the absence of direct privity, if the owner can show the damage to his property caused by the 3D printer was foreseeable.

The case Biakanja v. Irving (1958) 49 Cal. 2d 647, 649 gives courts a roadmap even if they didn’t foresee technology such as additive manufacturing.

When faced with a construction defect caused by a 3D printer used by the contractor or one of its subcontractors, the owner will certainly have, at the very least, an argument that the manufacturer of the printer or developer of the software should have been aware that a malfunction of its hardware or software would, in turn, impact the owner’s property.

Increased prevalence of this emerging technology will also have an impact on material suppliers. If 3D printers will be used in a specific project, designers and contractors should provide proper specifications for material compatible with the specific 3D printer. Material suppliers will also have to certify their materials as compatible with the printers.

Failure to do so could open designers and material suppliers to liability for construction defects resulting from the incompatibility of the material with the specific 3D printer.

The use of 3D printers in construction projects is also likely to conflict with current licensing and permit regulations.

For example, California Code of Regulations, Title 24, Building Standards Code, Section 110 et seq. provides for different types of inspections that are necessary before the government certifies a structure for use and occupancy. The increased speed with which 3D printers can complete projects could be slowed down by current inspection requirements and inspection scheduling procedures.

As the use of 3D printers becomes more common, government agencies in charge of inspecting construction projects will have to adapt to the faster-paced construction offered. In the ideal scenario, governmental agencies would embrace the new technologies in the construction industry and, for example, invest in automated scanner drones that could inspect an automated 3D printer’s work and, immediately thereafter, send the inspection’s result to the governmental agency for certification.

Such advances, however, may be difficult to achieve unless states, cities and counties make significant investments in infrastructure.

As 3D printers/robots become more commonplace on construction projects, contractors should be mindful of including express warranty clauses in purchase and leasing contracts for 3D printers.

Designers and material suppliers will have to confirm that construction materials under plans and specifications will be compatible with 3D printers; and governmental agencies will have to adapt to the fast production rate of 3D printers.

It’s Just Dirt, or Is It? – What You Don’t Know on an Excavation Site Can Hurt You, or at Least Cost You Money.

Courtney Lynch | Kilpatrick Townsend | June 27, 2018

Underground utilities and pipelines pose potential problems for excavators and other contractors performing work below ground. Whether your business involves the construction of buildings primarily above ground or running pipes or cables below, there are issues to consider if your construction involves excavations.

In most states, an excavator has a duty to request the location of underground utility facilities and underground pipelines through its state’s notification center. There are federal regulations that also touch on excavation best practices, such as OSHA’s (the Occupational Safety and Health Administration) Specific Excavation Requirements found in 29 CFR 1926.651.

There are two primary sources of law that govern excavations around underground utilities and pipelines in Texas. These two sources are the Underground Facility Damage and Prevention Act, and the Underground Pipeline Damage Prevention Rules.

The Texas Underground Facility Damage and Prevention Act, also known as the state’s “One Call Law,” is located in Chapter 251 of the Texas Utility Code. The One Call Law outlines the duties of excavators and utility operators when an excavation is planned in the area of telecommunications and electrical underground facilities, as well as in the vicinity of gas pipelines and other types of underground utilities. As defined in Sec. 251.002, an underground facility includes, among others, those that “produce, store, convey, transmit, or distribute” electrical energy, gas, petroleum, steam, and telecommunications services. Util. § 251.002.

The Underground Pipeline Damage Prevention Rules are located in Chapter 18 of the Texas Administrative Code. Implemented by the Railroad Commission of Texas, the Pipeline Rules apply to those with the intent to excavate near an “underground pipeline containing flammable, toxic, or corrosive gas, a hazardous liquid, or carbon dioxide.” 16 Admin. § 18.3(a).

Excavators and utility operators have distinct responsibilities when it comes to the requirements of the state notification system. Excavators are required to notify the state notification center of an intent to dig with very precise information, such as the exact location of the excavation site, the excavator’s contact information, and the starting date and time of the proposed dig.

Class A utility providers are required by law to respond to the location requests through the state notification center. The One Call Law defines Class A underground facilities as those that “produce, store, convey, transmit, or distribute” electrical energy, gas, petroleum, steam, and telecommunications services. Util. § 251.002. All Class A utility providers doing business in the State of Texas are required to participate in the notification center process. Although the duty is clearly on the utility provider to belong to the notification system and to mark its lines, Texas law does not require water or sewer operators (Class B utility providers) to be members of the Texas Notification System. An excavator should plan to contact those providers directly.

The utility operator is required mark the approximate location of its underground facilities within 48 hours and is required to mark lines with the color coding standards outlined by the American Public Works Association.

An operator who does not comply with the One Call Law shifts liability for damage to the lines from the excavator to the operator. An excavator who fully complies with its duties under the One Call Law will not be liable for damages to underground lines that were not marked by the utility operator. Id. at § 251.157(c). However, even if an underground utility is not marked correctly, the excavator may have partial liability if the excavator did not complywith the One Call Law. See Bechtel Corp v. Citgo Prods. Pipeline Co., 271 S.W.3d 989, 913 (Tex. App.—Austin 2008, no pet.).

Of course, marked lines only indicate the approximate location of underground utilities. Ultimately, the excavator must use care to avoid damaging marked lines and must take all reasonable steps to protect underground facilities, pipelines, and on-site people from harm.

Robots Are Coming to the Construction Site

Kendall Jones | Construct Connect | February 23, 2018

In a recent post, we discussed the likelihood of robots replacing human labor on the construction site. While there may be some attrition in the future, the most likely scenario is that robots will be used alongside human workers to augment their work, keep them safer and boost productivity. The current capabilities of existing robot combined with a growing labor shortage will probably lead to robots handling some of the more menial repetitive tasks, leaving the human worker to focus on other aspects of their job.

Here are some of the robots making their way to a construction site near you:

Doxel AI

Doxel is using robots and artificial intelligence (AI) to monitor jobsite progress with real-time, actionable data. The technology uses autonomous drones and rovers equipped with high-definition cameras and LiDAR to photograph and scan the construction site each day with pinpoint accuracy. Their AI then uses those scans to compare against your BIM models, 3D drawing, schedule and estimates to inspect the quality of the work performed and to determine how much progress has been made each day.

The AI uses deep-learning algorithms to identify and report errors in work performed. This can be anything from the excavation and site work to the mechanical, electrical and plumbing systems. The AI can recognize a building component based on its shape, size and location even if only a portion of the component is visible.

By classifying and measuring quantities installed, Doxel can tell you how much work was done each day which it can then compare against your construction schedule and alert you if your project is falling behind. The AI also detects deviations between installed components and onsite work with models so you can quickly identify errors and avoid costly rework.

The main goal of Doxel is to improve productivity, eliminate rework and help deliver projects on time and within budget. Doxel was used on a recent project for Kaiser Permanente in San Diego and was able to help the bring construction in 11% under budget and improved labor productivity by 38%. Doxel has recently raised 4.5$ million in funding.

Built Robotics

Built Robotics’ Automated Track Loader, or ATL, was developed to excavate smaller construction sites. The system uses specially designed LiDAR to accommodate for vibrations in order to see where it is going and to measure the material being excavated. Augmented GPS, a combination of onsite base stations and satellites, are used to geofence the site and to move the track loader around the site with precision accuracy.

Instead of building an entirely new piece of heavy equipment, the electronics for the ATL are housed in a cargo carrier that attaches to the cab to retrofit existing compact track loaders. The system also has a collision detection system to prevent the loader from coming into contact with workers or other equipment on the construction site. The ATL also has a kill switch for the person supervising the work should it be needed.

Input from equipment operators was used in designing the software running the ATL and the machine operates at about the same speed as a human operator. Built Robotics has been tested out on a few pilot projects in the San Francisco area and has raised $15 million in funding.

TyBot

A rebar tying robot might not seem that glamorous, but it does fill a very specific need on construction sites where labor is short. Developed by Advanced Construction Robotics, Inc., the TyBot can continuously tie rebar with only one worker needed to oversee the work.

Once the rebar for a bridge project has been placed, the TyBot can be set up using the existing bridge infrastructure and set to work. The robot moves along a gantry to identify each intersection of rebar, ties it and then moves on to the next intersection. The TyBot frame can expand to accommodate a bridge span of 145 feet.

The TyBot has a couple of clear advantages. One, it will allow a crew to be more productive because once they placed the rebar, they can move on to the next job while the TyBot does its work. Bending over and tying thousands of rebar intersections is back-breaking work that can lead to strains and other injuries.

The TyBot was used to tie rebar on a bridge in Beaver County, PA last November and in addition to renting it out for use, the company is currently taking purchase request with plans to begin delivering the robots in July.

You can check out more examples of robots in construction here.

Autonomous Vehicles and Ride Sharing Will Reshape Our Buildings, Our Cities, and Our Lives

Foley & Lardner | February 2018

When the first automobile hit roadways in the early 1900s, developers, planners, and city officials had to completely re-think the design and planning of cityscapes, both new and old. The era of narrow streets, communities defined by walking distance or streetcar line, and short-distance commuting gave way to massive boulevards, interstate highways, and the rise of suburbanization. These shifts in urban planning had the sole objective of utilizing the car to move as many people as quickly and safely as possible, without the limitations of public transit. But, because of this, cities themselves suffered, resulting in obsolete buildings being demolished, neighborhoods destroyed for highways, public transit being reduced or removed, and intimate communities ripped apart to shoehorn in 7-lane boulevards. Now, as autonomous cars, busses, and other next-generation technologies entering the mass-market, developers and city officials are again having to re-think how disruptive technologies will shape the way we live, work, and play in our cities.

Unlike urban planners of the past, cities and their planners are trying to integrate new technologies into their existing city-scape, rather than let that technology destroy the existing city and redefine how a city is built. Contrary to the change-and-destroy method of yesteryear, this means “future proofing” projects and city-wide masterplans. By future-proofing existing cities and future developments, planners and city officials hope to build structures that can accommodate and anticipate the changes in the way people commute and live in urban and suburban environments. This means designing buildings that can be retrofitted to convert parking structures to offices or living space, turning roadways to greenspace, or parking lots to parks and commercial spaces that add value to the urban and suburban fabric while still producing a return on investment for the city and developers alike.

As more people look to ride-sharing and car sharing services to meet their commuting and transit needs developers are anticipating a drop-off in personal car ownership and use of a personal car for day-to-day commuting. While current developments require parking space to accommodate commuters, the future might make these spaces obsolete. To avoid this predicted obsolescence, some developers are trying to figure out how they can repurpose these spaces for future use. This could mean the constructing of buildings with internal parking structures that can be converted to office, commercial, or residential space if demand for parking decreases in the future. This also means cities such as Los Angeles are studying how to repurpose their existing surface parking inventory which currently accounts for nearly 14% of the city’s footprint, or about 200 square miles of land, just for parking a car. Other cities are looking to for ways to possibly existing roadways into greenspace and repurpose existing automotive infrastructure for autonomous car staging or increasing pedestrian usage.

In San Francisco, the San Francisco Giants are looking at how they can incorporate the driverless futures into their Mission Rock project. In this 27-acre project, developers are attempting to designing future streets and street-frontage with a focus on prioritizing pedestrian pick-up and drop-off in the world of autonomous vehicles. Similarly, as e-commerce continues to rise in popularity and autonomous delivery trucks on the horizon, many apartment developments are building large storage and cold-storage areas into their footprint and delivery bays to accommodate this shift in consumer shopping.

Although developers and planners are focusing on future proofing their projects, it is not without risk. The cost to build a structure with future proofing in mind not only is more expensive, but in the scope of parking structures, it means fewer cars can fit compared to non-future proofed structure. But, the payoff later can make up for this cost. For instance, one convertible project design includes 117 spaces per floor to park cars, about 17 per floor fewer than if it were built using a conventional parking structure design. But, if this project is converted to office space or even residential living, the return on investment could be 2 to 3 times the return of keeping this a traditional parking structure.

The Contract Disputes Act: What Every Federal Government Contractor Should Know

Sarah K. Carpenter | Smith Currie | January 29, 2018

Claims on construction projects are unpleasant, but sometimes unavoidable. Contract with the federal government and you are by statute and by contract required to resolve any and all disputes under the Contract Disputes Act. So what is the Contract Disputes Act? This article sets forth basic information all federal government contractors should know when faced with the necessity of making or defending a claim on a federal project.

What Is the Contract Disputes Act?

The Contract Disputes Act of 1978 (CDA or Act) was enacted by Congress to implement a comprehensive statutory scheme for the resolution of government contract claims. The CDA provides a framework for asserting and handling claims by either the government or a contractor. All disputes under the CDA must be submitted to either the U.S Court of Federal Claims or to an administrative board of contract appeals. The vast majority of board cases are handled by either the Armed Services Board of Contract Appeals or the Civilian Board of Contract Appeals. The ASBCA is generally responsible for deciding appeals from decisions of contracting officers in the Department of Defense, the Department of the Army, the Department of the Navy, NASA, and when specified, the CIA. The CBCA hears disputes from all other executive agencies except the United States Postal Service (USPS), the Postal Rate Commission, and the Tennessee Valley Authority.

The USPS is served by the Postal Service BCA. In addition, the Government Accountability Office Contract Appeals Board handles contract disputes arising in the legislative branch, and the Office of Dispute Resolution for Acquisition handles contract disputes and bid protests arising out of Federal Aviation Administration procurements.

What Types of Claims Are Subject to the CDA?

The CDA governs post-award monetary claims, such as breach of contract, non-monetary claims, such as a claim for time or interpretation issues regarding a specification, and claims arising out of an implied-in-fact contract between the federal government and a contractor.

What Types of Claims Are NOT Subject to the CDA?

There are a few categories of claims that may arise between the government and a federal contractor that are not subject to the CDA. For instance, a prevailing wage claim arising under the Davis Bacon Act is not subject to the CDA because claims or disputes which another federal agency is specifically authorized to handle are not subject to the disputes process under the CDA. Additionally, any tort claim that does not arise under or relate to a contract or implied-in-fact contract between the government and a contractor is not subject to the CDA. Lastly, it should be noted that the CDA governs only post-award disputes; therefore, pre-award claims, such as bid protest actions, are not subject to the Act.

Who Can Assert a Claim under the CDA?

The federal government and government contractors may bring claims under the CDA. Claims by the government, such as claims for liquidated damages or claims for default termination, are subject to the CDA and may be brought by the government against a contractor after a contracting officer has issued a final decision on each claim. Generally, a final decision by the contracting officer is a prerequisite to the government’s assertion of any claim or counterclaim against a contractor. However, an important exception to this rule is that a contracting officer’s final decision is not a prerequisite to the government’s assertion of a counterclaim against a contractor under the False Claims Act.

Generally, only the parties to the contract—the government and the prime contractor—can bring a claim under the CDA. A subcontractor cannot bring a claim against the government under the CDA. However, a prime contractor may assert a pass-through claim against the government on behalf of a subcontractor. A prime contractor may only sponsor a claim on behalf of a subcontractor if the prime contractor has paid the subcontractor’s claim or, more commonly, the prime contractor otherwise remains potentially liable to the subcontractor pursuant to a claims cooperation or liquidating agreement. Most liquidating agreements limit the prime contractor’s liability to the amount the government agrees to pay or is required to pay.

When Can a CDA Claim Be Asserted?

Claims by both the government and federal contractors are subject to a six year statute of limitations which means that claims under the CDA must be submitted within six years of the time when all events establishing alleged liability for an injury were known or should have been known. Additional time limitations under the Federal Acquisition Regulation may apply to claims related to changes, differing site conditions, or suspension of work. For instance, a contractor is required to give “prompt” written notice to the contracting officer of a differing site condition before it is disturbed.

How to Make a Claim under the CDA?

A contractor is not required to submit its claim under the CDA in a particular format. However, a contractor’s claim must strictly satisfy the criteria set forth below to constitute a claim under the CDA.

First, a contractor must make a written demand or assertion. A mere notification by a contractor notifying a contracting officer of an issue or an amount the contractor believes it is entitled to does constitute a claim under the CDA.

Second, the contractor’s written demand or assertion must seek the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to a contract between the government and the contractor. The contractor’s claim must be sum certain or capable of determination by a simple mathematical formula. A contractor’s assertion for payment “approximately” or “in excess of” an amount will not constitute a claim under the CDA.

Third, all contractor claims exceeding $100,000.00 must be certified by the contractor. Claims asserted by the government are not required to be certified under the CDA. For claims exceeding $100,000.00, a contractor must certify that (i) the claim is being asserted in good faith, (ii) the supporting data is accurate and complete to the best of the contractor’s knowledge, (iii) the amount requested is accurate, and (iv) the person asserting the claim is duly authorized to certify the claim.

Fourth, the claim must be submitted within the six year statute of limitations.

Fifth, the claim must be submitted to a contracting officer, not a field officer or other administrative official.

Sixth, the claim must include a specific request for a final decision or otherwise set forth a clear indication that the contractor would like the contracting officer to issue a final decision.

If a contractor’s claim satisfies the six requirements set forth above, then the claim may be properly asserted under the CDA.  A claim does not initially need to include supporting data, such as a detailed cost breakdown, if it otherwise satisfies the criteria of a CDA claim. However, a contractor’s claim should contain sufficient information to show the basis for the contractor’s entitlement to the relief requested.

What Is the Difference Between a Request for Equitable Adjustment and a Claim under the CDA?

As is discussed below, once a CDA claim is made, the contracting officer is obligated to issue a final decision that, if unfavorable, must be appealed within ninety (90) days to a BCA or one year to the Court of Federal Claims. Rather than start the running of this clock, a contractor may ask for a change order or submit an uncertified request for an equitable adjustment or REA. Such requests give the contractor and the government an opportunity to discuss and negotiate the contractor’s request outside the time limits imposed by the CDA. If, as often happens, the contracting officer agrees to issue a change order, both sides are spared from the formal dispute resolution process. On the other hand, contractors should avoid falling into endless letter writing and negotiations. If it becomes apparent that the contracting officer has no intention of issuing a change order, the contractor should proceed to the formal CDA claims process described above.

What Happens Once a Claim Under the CDA Is Asserted?

Once a contractor submits a claim to a contracting officer meeting all of the criteria of a CDA claim, the contracting officer must issue a final decision on the claim. If the contractor’s claim is for an amount less than $100,000.00, the contracting officer must issue a final decision within sixty (60) days of receipt of the claim. However, if the contractor’s claim is for an amount exceeding $100,000.00, the contracting officer may issue a final decision within sixty (60) days or provide to the contractor a firm date within a “reasonable time” by which the contracting officer will issue a final decision. If the contracting officer fails to issue a final decision within a reasonable time, such failure may constitute a deemed denial, and the contractor may proceed with an appeal to the appropriate BCA or the Court of Federal Claims. Frequently, deemed denial appeals result in an order directing the contracting officer to issue a final decision.

How to Appeal a Final Decision?

After a contractor receives a final decision by a contracting officer regarding its claim, the contractor may choose to appeal the final decision to the Court of Federal Claims or the BCA that has jurisdiction over its contract. A contractor may appeal the entirety of the contracting officer’s final decision or some portion thereof.

Timing may be dispositive for a contractor in determining which forum to file its appeal of the contracting officer’s decision. A contractor must file its appeal with the BCA within ninety (90) days of receipt of the contracting officer’s final decision. Or, a contractor may file an appeal with the Court of Federal Claims within twelve (12) months of receipt of the contracting officer’s final decision. Timing may play a crucial role in a contractor’s decision, but many factors, such as preference for a more—Court of Federal Claims—or less—BCA—formal set of procedural rules or the ability of the government to bring a False Claims Act counterclaim, should be weighed by a contractor in making its forum selection for its appeal. Generally, once a contractor chooses its forum, its decision is binding, and the contractor cannot pursue its claim in the other forum.

A formal complaint is not required to file an appeal of a contracting officer’s final decision to a BCA. An appeal to the BCA must be in writing, express dissatisfaction with the final decision, manifest intent to appeal the final decision, and be sent to the contracting officer and the BCA. To appeal a contracting officer’s decision before the Court of Federal Claims, the contractor must file a complaint setting forth the factual and legal basis for its claims.

Are Attorneys’ Fees Recoverable for a Claim under the CDA?

Generally, a contractor may not recover its attorneys’ fees incurred pursuing a claim under the CDA. The Equal Access to Justice Act allows some individuals and small businesses to recover attorneys’ fees up to $125 per hour if it is determined that the claimant is the prevailing party and the government’s position was not substantially justified. The claimant must also comply with the size standards set forth in the Act.