Matthew H. Mues | Davis Wright Tremaine
Artificial intelligence (AI) and its actual and potential applications are a hot topic, including use in construction. One court has defined AI “as any technology that uses machine learning, natural language processing, or any other computational mechanism to simulate human intelligence, including document generation, evidence creation or analysis, and legal research, and/or the capability of computer systems or algorithms to imitate intelligent human behavior” and that AI “can be either generative or assistive in nature.”[1]
That court defined generative AI “as artificial intelligence that is capable of generating new content (such as images or text) in response to a submitted prompt (such as a query) by learning from a large reference database of examples” and AI assistive materials as “any document or evidence prepared with the assistance of AI technologies, but not solely generated thereby.”[2] Granted, other industries may have their own definitions, but these are ones adopted by at least one court.
In a recent article, the applications, and some risks, of applying AI in construction were discussed.[3] Here are some of our key takeaways from that article:
- AI tools are “already being used on construction projects to review and vet the parties’ background and qualifications” and “[s]earches of public records, court filing, and social media presence can be performed with levels of speed and efficiency that are hard to match for their human investigator counterparts.”
- AI tools are “being developed to review, analyze, and draft project agreements, using either publicly accessible information…or past contracts developed by the party or its counsel tasked with delivering these key project documents.”
- AI tools could be employed to track progress and payment.
- Project data from schedules, field reports, drone footage, project drawings, and past payment applications could be used to corroborate the information included in a payment request, resulting in a faster and more precise evaluation of a contractor’s or a subcontractor’s performance submitted as the basis for compensation.
- AI tools could review drawings, specifications, bills of materials, and project schedules to develop a procurement plan for a project.
- Using market data, the timing of material purchases could be optimized.
- Generative AI has been used to develop whole design concepts and project images or adapt an existing design into a different or modified space, as well as for site placement and generating requests for proposals or responses.[4]
That same article identifies some of the risks of using AI tools and generative AI, including:
- The potential for inaccurate analysis and decisions.
- Liability consequences, especially with likely software disclaimers.
- Disputes over data inputs.
- Who (owner, design professional, or contractor) selected the AI tool and the implications thereof.
- Security and privacy concerns. These include: (i) whether images of personnel on site are used to confirm their presence in a specific area or in general; (ii) whether such use violates laws relating to the collection of biometric identifiers, especially if requisite written policies, informed consents, and storage and transmitting protocols are not in place; and (iii) if sensitive data is collected, whether the AI or generative AI tool being employed is maintained on a closed system.[5]
With that said, the article concludes by pointing out what the future may hold for AI in construction. “There may come a day when a project can be planned, designed, scheduled, purchased, and performed with the input and assistance of AI at every step. Additionally, where site surveillance and video technologies are applied, early warning of safety incidents and falls may significantly decrease the number of injuries and project site fatalities.”[6] We will see how the use of AI in construction unfolds in the coming years.
Certainly, before using AI tools in any construction project, you will need to fully understand the risks and implications of doing so. If you have questions relating to the use of AI in construction and potential implications of using it, please contact our government contracts and construction group.
[1] Matter of Weber as Trustee of Michael S. Weber Trust, 220 N.Y.S. 3d 620, 635 (2024).
[2] Id.
[3] Practical Law Real Estate, Expert Q&A on AI in Construction, Practical Law Article w-046-2170 (2025).
[4] Id.
[5] Id.
[6] Id.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.