Data & digital processes: beware of the electronic tumble dryer

The importance of clear and coordinated data is fundamental to the success of any construction project. Dr Stacy Sinclair discusses the scale and nature of data that the construction industry now faces, and the opportunities and challenges this raises.

Clear, consistent and coordinated data and digital processes are fundamental to the success of a construction project, as well as to the success of any subsequent claims or disputes.  In a world of big data, data which is generated at an exponential rate each day, it is more important than ever to appreciate the significance of data and data management in your digital processes. 

This article briefly discusses the scale and nature of data that the construction industry now faces, and the opportunities and challenges this raises.  It then goes on to highlight some examples of what can go wrong if data and data management are not considered at the outset of a project.

Data:  an electronic tumble dryer?

It was estimated that by 2020 the entire digital universe was expected to reach 44 zettabytes and by 2025 that 463 exabytes of data will be created each day globally.1  By 2030, quantum computing and the quantum industry is predicted to be a multibillion-dollar industry.2  How many of us even know enough about the difference between a gigabyte, a terabyte and a petabyte?

What we do know is that on any given construction project, the amount of data being generated daily across the project team is mammoth, and is only set to increase given the new and exciting technologies and platforms now being utilised more commonly.

Just to scratch the surface, data is generated from:  drone and video footage, photos, texts, WhatsApp, Slack, emails, Teams chats, BIM models, contracts, sub-contracts, sub-sub-contracts, specifications, schedules, site diaries, turnstiles and biometric clocks, the common data environment (CDE), shared project platforms, timesheets, asset databases, electronic invoicing and payment records, reports, weather records, correspondence, order forms, social media, programmes, etc…  The list seems endless.

Given the vast amount of data, companies and/or projects often face the issue of data silos and data overload.  Setting aside issues of interoperability and compatibility, whilst some companies are actively progressing the extraction of analytics from their data in order to enable data-driven decision-making, others are either not using their data effectively and/or are not using it at all.  Some may not even be entirely aware of all the data available on a given project, and/or appreciate where it is being stored.  

Parties need to be alive to data management issues and minimise risks where possible for legal, security, GDPR issues and otherwise.  Data and records of course are also a requirement in many contracts and sub-contracts3, and indeed are of utmost importance if you want to succeed in evidencing your claim in a formal dispute.  

For example, in 2019, in the case of Freeborn & Anor v Marcal (t/a Dan Marcal Architects)4, a professional negligence claim was made against an Architect.  The Judge held that the Architect was negligent as he did not produce a written brief or record the design changes for project.  The Architect’s daybooks, notebooks and sketch books certainly did not help matters.  The Judge stated:

“…As volunteered by the Defendant [Architect] these notebooks contained a “tumble dryer of information”.  I would suggest a “tumble dryer of misinformation”.  The notebooks are confused, confusing and chaotic…”

Whilst this example is not necessarily “digital”, it demonstrates the importance of organised and clear data and records.  Digital data and electronic records of course have the potential to do much better if managed properly: they can be processed and analysed in bulk, quicker, more efficiently and more sophisticatedly.  With the management issues we see with big data and its exponential growth, will we soon have the “electronic tumble dryer of misinformation” before the Courts?

Collaborative tools and platforms to improve data management and workflows are constantly evolving.  As more and more technologies are connected and we create continuous workflows and processes, from procurement and design right through to commissioning and operation, some of these issues start to decrease.  However, we must continue to remember the significance of data and factual evidence in proving a legal entitlement.  Therefore, data and data management must remain at the forefront in order to achieve a successful project or, failing which, a successful outcome in a dispute.      

Access to Data:  do I have a legal right to it?

A further issue which parties must consider at the outset is their right to access data, either during the course of a project or in the future.  With the use of the cloud-based, shared platforms which centrally locate project information for coordination, collaboration and the effective running of a project, issues of access can arise.  

Whilst several years ago now, the first reported “BIM” case in the UK did not actually concern the BIM models or the process around BIM.  Rather, the dispute was whether one party was entitled to access common data environment on ProjectWise.  In Trant Engineering Limited v Mott MacDonald Limited5, the parties disagreed over the contract terms and when Trant did not pay Mott MacDonald the sums it considered were due, Mott MacDonald denied Trant access to the servers hosting the ProjectWise design data by revoking the passwords that had been issued.  The Judge ultimately awarded Trant access, but Trant first had to make a payment into Court of £475,000.

Whilst in the Trant v Mott MacDonald case Trant required access to the data so that it could progress the project, issue of access may also arise years after a project has been completed.  Parties may be liable for six or 12 years after the completion of their respective contract or deed, depending on the limitation period.  It may become critical to have access to data that once lived on a shared platform in order to evidence what happened. 

In six or 12 years’ time, where will the data be?  Will you have a right to access it?  Do you need a license to access it? These, and others, are important questions to take into account at the outset when data management strategies and platform ownership/licenses are considered.

Conflicting Data:  which should I use?

Whilst some consider that data and the use of technology should lead to the “truth” of a particular situation, and therefore minimise and potentially eliminate claims and disputes, this can only happen if there is transparent communication and clarity and consistency in contract documentation at the outset of a project.  All parties need to be “on the same page” and expectations of obligations and outcomes need to align.    

Given the vast amount of data available on a project, parties need to agree what the data is intended to be used for and, if there are multiple sources of data for a given element, which one is to be used.  In not, ambiguity may exist which might ultimately lead to a dispute.

For example, in the case of Premier Engineering (Lincoln) Limited (“Premier”) v MW High Tech Projects UK Limited (“MW”6 , Premier provided labour to MW and charged on an hourly rate.  A dispute arose regarding the number of hours the operatives had worked.  Premier considered that it was underpaid by some £1.3m.  MW considered that it had substantially overpaid.  There were timesheet records and turnstile records, but these did not align.  Premier then installed a biometric clock to record its operatives’ hours.  All three sources told a different story.

The Judge decided that an agreement had been reached between the parties that the timesheets and biometric clock would be used to calculate payments, and not the turnstile data.  

Here, the parties tried, but failed, to reach an agreement during the course of the project, including in an alleged meeting that took place in a stairwell.  It had not been agreed in advance and therefore a reminder that clarity is needed when entering into agreements as the risk of conflicting data is real.  There are always two sides of a coin. 

Conclusion

Clear, consistent and coordinated data and digital processes are fundamental, as is collaboration and teamwork between all disciplines at the inception of project, and indeed throughout the design, construction and commissioning, in order to minimise claims.

Parties need to be clear on what has been agreed in respect of data and digital processes, what are the deliverables, what are the requirements in respect of time, cost and quality, what are the conditions for getting paid, etc.

With a greater use of new technologies, new and different deliverables during design phases, and an emphasis on outcomes, it is even more important now that communication and clarity are at the forefront.

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Stacy Sinclair

Tel: +44 (0)20 7421 1986
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