By Senior Partner John E. Sebastian and Partner Brian C. Padove, Chicago, IL
Digital tools are now firmly embedded in day-to-day construction site operations. What was once an industry that was behind technological advancements with technology limited to pilot programs or large-scale design-build projects – Building Information Modeling (BIM), artificial intelligence, and jobsite automation – is now standard on traditional projects and increasingly expected to be used by trade contractors.
On the one hand, these tools offer meaningful benefits – enhanced safety, improved coordination and avoiding design conflicts, and more efficient project management. However, on the other hand and at the same time, technology tools introduce legal and project risks that arise with poorly defined use of such tools, especially at the trade level. As with many developments in construction, the challenge is not technological capability, but rather, how responsibility is assigned when digital tools influence the means, methods, and outcomes.
BIM and the Blurred Line Between Design and Construction
BIM is frequently positioned as a coordination aid intended to supplement, but not replace, the contract documents. Subcontracts will sometimes include language stating that models are not contract documents and that the drawings and specifications control. In practice, however, BIM models are routinely relied upon for trade coordination, sequencing, layout, and prefabrication. This reliance can create exposure for subcontractors when issues arise that were visible in the model but not expressly shown in the plans. In those situations, subcontractors may face arguments that they failed to identify or address conflicts during coordination, even though the contract disclaims reliance on the model.
Legally, this creates tension between what the contract says and how the project is actually built. Courts and arbitrators frequently examine the conduct of the parties – not just contract language – when determining responsibility. If BIM is actively used to plan and perform work, it may be treated as more than a passive reference tool.
AI – the Invisible Decision Maker
AI is increasingly embedded in construction software used to analyze schedules, track productivity, monitor safety conditions, and verify progress. Unlike BIM, AI tools often operate in the background, and subcontractors may not know when or how AI-generated outputs are being used to make project decisions. From a legal perspective, the concern is not the use of AI itself, but whether AI-driven conclusions are treated as authoritative. Contracts rarely address whether AI outputs are advisory, whether they can be challenged, or how errors are handled. This can become problematic if AI-based analytics are later used to support claims of delay, inefficiency, or default.
In sum, AI systems depend on inputs, assumptions, and algorithms that may not fully account for real-world project conditions. Yet their outputs are often presented as objective or data-driven, which can give them outsized weight in disputes. As such, as AI becomes more embedded in project decision-making, subcontractors should be mindful of how AI-generated conclusions are used, and importantly, whether the contracts at issue preserve the ability to question them.
Automation, Monitoring, and Jobsite Data
Automation on the jobsite (whether we are talking drones, automated reporting tools, equipment telematics, or digital productivity tracking systems) has significantly increased the volume of data generated during construction. These tools are often implemented to improve safety oversight, document progress, and enhance efficiency. However, from a legal perspective, the data they generate can carry consequences that extend well beyond their intended operational purpose.
Specifically, a central issue is how automated jobsite data is later used and interpreted. In disputes, such data is frequently presented as objective evidence of performance or nonperformance. Yet, automated metrics and visual records rarely capture the full context of jobsite conditions, including trade stacking, access limitations, design revisions, sequencing changes, weather delays, or owner disruptions. Without that context, data points may be misleading when viewed in isolation.
With this in mind, automation also raises questions regarding data ownership, access, and control. Subcontractors may have limited visibility into the data being collected or how it is analyzed, even when that data is later used to support claims, backcharges, or performance assessments. Where contracts do not address these issues, automation data can be selectively used, after the fact, in ways that were not anticipated during performance.
Accordingly, subcontractors should be mindful of how automated monitoring tools are addressed in their contracts, including whether they provide access to underlying data, permit challenges to automated conclusions, and limit the use of such data to its intended purpose rather than as a unilateral measure of performance.
The Core Issue: Contractual Risk Allocation
Despite the evolving nature of BIM, AI, and automation, the underlying legal framework governing construction projects has not changed. Longstanding principles related to scope, responsibility, and standard of care continue to apply. What has changed is the manner in which those principles are tested when digital tools influence how work is planned, performed, monitored, and evaluated.
Digital tools can obscure traditional lines of responsibility. Coordination models, data-driven analytics, and automated monitoring systems may shift expectations regarding who is responsible for identifying conflicts, verifying performance, or addressing deficiencies – often without corresponding changes to the contract. To this end, when disputes arise, responsibility is rarely determined by the sophistication of the technology involved, but rather by how risk was allocated, or left unallocated, in the governing agreements.
With this in mind, trade contractors should be particularly cautious of contract provisions that, intentionally or otherwise:
- Require reliance on digital tools without clearly assigning responsibility for their accuracy or limitations;
- Shift coordination, detection, or verification obligations downstream without additional compensation or control;
- Permit unilateral determinations of performance based on digital outputs; or
- Treat technology-driven conclusions as binding or presumptively correct.
As mentioned above, where contracts fail to address these issues directly, risk is often assigned after the fact based on conduct and perceived expectations rather than negotiated agreement. In that environment, digital tools can quietly expand responsibility without expanding scope, pricing, or protection.
Practical Considerations for Trade Contractors:
As digital tools become more prevalent on construction projects, trade contractors should approach BIM, AI, and automation with the same level of scrutiny traditionally applied to scope, schedule, and risk transfer provisions. While the appropriate response will vary depending on the project and the technology involved, several recurring considerations can help subcontractors manage exposure.
- Understand How Digital Tools Will Be Used: Trade contractors should seek to understand not only whether digital tools are being used on a project, but how they are intended to influence performance and decision-making. Whether BIM coordination is mandatory, AI analytics are relied upon for progress evaluations, or automation data is used for performance tracking, early awareness allows subcontractors to identify potential risk and address it before work begins.
- Evaluate the Impact on Scope and Means and Methods: Digital tools can subtly alter expectations regarding coordination, verification, and oversight. Subcontractors should assess whether participation in BIM, compliance with AI-driven directives, or exposure to automated monitoring effectively expands scope beyond traditional trade responsibilities. Where digital requirements impose additional obligations, those obligations should be clearly defined and appropriately priced.
- Seek Contractual Clarity and Guardrails: Contracts should clearly address the role of digital tools, including whether reliance is required, who bears responsibility for accuracy, and how disputes involving digital outputs are resolved. Subcontractors should be cautious of provisions that treat models, analytics, or automated data as conclusive or binding without providing a meaningful opportunity for review or challenge.
- Review Indemnification and Risk-Transfer Provisions Carefully: Indemnification clauses drafted without consideration of digital tools may unintentionally shift responsibility for technology-driven decisions outside a subcontractor’s control. Where appropriate, subcontractors should seek to ensure that indemnity obligations align with actual authority and responsibility, particularly when digital tools are selected or controlled by upstream parties.
- Address Data Access and Use: When automation or monitoring tools generate jobsite data, subcontractors should consider whether they will have access to that data and how it may be used. Contractual provisions addressing transparency, data sharing, and limitations on use can help prevent automated data from being selectively deployed in claims or performance disputes.
- Remain Attentive to Developments: The legal treatment of BIM, AI, and automation continues to develop. Trade contractors should remain attentive to changes in contract language, industry standards, and dispute trends, and consult counsel when digital requirements present uncertainty or materially alter project risk.
Conclusion
BIM, AI, and automation are now part of the modern construction jobsite, and their use will only continue to expand. While these tools assist with coordination, safety, and efficiency, they also introduce new points of legal and contractual risk when their role is not clearly defined or not monitored. For trade contractors, the issue is not whether to employ digital tools, but whether the contracts governing their use accurately reflect how they influence performance, oversight, and responsibility. Addressing these risks proactively with careful contract review, clear risk allocation, and informed project management will be increasingly important as technology continues to shape how construction work is performed and evaluated.
This article was published in the February 2026 issue of The Foundation of the American Subcontractors Association, FASACares.org. Read the article