AI in Construction Contracts: Tool or Third Party?
Responsible use of AI is necessary in contract administration
CONSTRUCTION BLOGS
This discussion is a bit tricky…
Just assume a scenario.
Two parties signed a contract. They agreed that whatever is stated in the contract will remain confidential between them. If there is ever a need to share any document with a third party, they will first obtain written consent and share only the information that is necessary. The entire contract will not be handed over to any third party.
All documents produced by either party will remain their proprietary assets and, upon completion, will be returned to them. Especially the drawings, which are the sole property of the client, with exclusive rights over the architectural and structural designs.
Signed.
Stamped.
Copies distributed.
The estimator took the soft copies of the drawings and BOQ, fed them into an AI model, and gave a prompt to match the quantities in the BOQ with the drawings.
The AI model processed the prompt and displayed the results in an organized form. The data is also stored in the AI model’s memory for future needs.
Sounds good!
Obviously, for most of us, it may seem like a simple and efficient way to perform the task.
But I have a question.
Did the estimator ask the other party for consent before uploading the documents?
Because, as per the contract, it was agreed that without consent, none of the documents would be shared with a THIRD PARTY.
Yet, the estimator has shared the entire data with something whose position as a credible tool is still ambiguous and has not been explicitly defined in the contract documents.
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So, on what basis did the estimator share those documents?
Is AI a third party or simply a tool?
Because, by definition, a third party is someone who can comprehend, evaluate, and judge the data — and an AI model does exactly that.
Now, for the estimator, it may simply be an easy and efficient way to perform the task. But from a contractual point of view, could this be considered a breach of the contractual commitment?
I know that for many of you, this may sound extreme. But let’s be honest.
Do we really have any clause in our contracts that allows us to share contractual data, drawings, BOQs, or other confidential documents with AI models?
None.
Then in what capacity are we sharing them now?
It is not exactly like our traditional software, where we take commitments from software providers regarding data protection and confidentiality.
Here, we are using publicly available AI tools, and the exact treatment, storage, and future use of our data may not always be clearly defined in the contract documents.
Personally, I generally don’t upload contract documents or drawings to AI models because I am not fully confident about whom I am actually sharing my data with.
Is it a tool?
Or is it a third party?
I think a contract specialist or an AI specialist can better guide me on this.
What do you think?