Surety Bond Quarterly - Summer 2017 - 23

potential waste, resulting in a substantial cost savings.
In addition to tracking materials,
drones can also: (1) track construction
progress and schedule; (2) conduct
site surveys; (3) collect geotechnical data; (4) track excavation and fill
volume; (5) provide site security; and
(6) monitor employee behavior and
site safety. The implications can be
significant. The ability to track construction progress and productivity
can help a project stay on schedule,
reduce inefficiencies, and provide
accurate progress reports to the
owner. In addition, given the speed by
which the drone can travel a project
site, it can more efficiently provide
site and construction progress information to the user than in-person site
visits. Drones may also allow one to
collect critical information from hardto-reach areas where site conditions
may be largely unknown or tough
to determine with certainty. Having
significant site condition information
prior to the beginning of construction
can help prevent claim over a "differing" site condition.
Identifying and
Allocating the Risk
As with any new technology, it is
important to properly identify and
allocate the risk arising from its use.
In order to do so, one must first identify any rules or regulations that govern the use of such technology. The
Federal Aviation Administration (FAA)
requires that all drones be registered
and that anyone operating a drone
be properly certified and, of course,
comply with certain FAA regulations.
So, whether one is training someone
in-house or hiring an outside vendor,
it is important to understand these
requirements to ensure compliance.
One must also identify the drone's
intended use(s). Will it be used to
monitor construction progress;
measure materials; perform a preconstruction site analysis; or provide
security? Regardless, the parties
involved must clearly identify the
intended use in order to properly
assess and allocate risk in the project's contract documents.

DRONES CAN PROVIDE A NUMBER OF BENEFITS TO
CONSTRUCTION PROJECTS. IN ORDER TO MAXIMIZE
THE BENEFITS, IT IS CRITICAL THAT THE PARTIES
UNDERSTAND THE ATTENDANT RISKS AND TAKE
STEPS TO MITIGATE SUCH RISKS BY ENSURING
COMPLIANCE WITH THE RELEVANT RULES AND
OBTAINING PROPER INSURANCE COVERAGE.
For instance, if a party uses a
drone to inspect field conditions,
the contract documents should identify, at least, (1) what information
the party is expected to gather; (2)
what other parties (if any) may use
and/or rely on that information; (3) to
what degree they may use or rely on
the information; and (4) who bears
responsibility for the dissemination
of inaccurate or erroneous information. For example, it is important
to consider whether a contractor's drone-based site inspection
increases the contractor's responsibility as to what it knew or reasonably should have known about
site conditions (that is, in support
or defense of a claim for a differing site condition). Another example
relates to the use of drone-captured
information in Building Information
Modeling (BIM). Drones have robust
capability to scan and capture construction conditions, at any stage
and in just about any location, in 3D.
If the data collected will be incorporated in a 3D digital model, the
contract documents must identify
who bears the responsibility for
ensuring  the accuracy of the data
and who bears the responsibility
for properly incorporating data into
the model.
One final consideration is insurance coverage. A typical Commercial
General Liability policy disclaims or
excludes coverage for losses arising
out of the ownership, maintenance,
use, or entrustment to others of any
"aircraft." A drone, per the FAA, is
an aircraft. As such, before taking
flight, one must ensure that the risks
associated with something going
wrong are covered. As a threshold
matter, consult with your insurance
professional to ensure that you

and/or your drone service provider
are properly covered for damage to
the project, damage to surrounding
properties, and injuries to workers
or bystanders.
Drones can provide a number of
benefits to construction projects.
In order to maximize the benefits,
it is critical that the parties understand the attendant risks and take
steps to mitigate such risks by
ensuring compliance with the relevant rules and obtaining proper
insurance coverage. The remaining
risks should be identified and clearly
allocated in the construction documents. With these considerations in
mind, one should be ready to take
advantage of the many benefits provided by drone use on a construction project.
●
Jonathan R. Hausner is counsel
in the Construction Law Group at
Robinson+Cole where he handles all
aspects of construction project transactions, dispute resolution and litigation. Hausner represents all parties
involved in construction, including
public and private property owners,
general contractors, subcontractors,
material suppliers, and sureties. He
can be reached at jhausner@rc.com
or 617.557.5928.
Elizabeth Wright is an associate
in the Construction Law Group at
Robinson+Cole where she focuses
her practice in the areas of construction law, commercial litigation,
and surety and fidelity law. Wright
counsels clients throughout the
construction industry, from building
and property owners to contractors,
subcontractors, material suppliers,
and sureties. She can be reached at
ewright@rc.com or 617.557.5947.

NATIONAL ASSOCIATION OF SURETY BOND PRODUCERS | WWW.NASBP.ORG

23


http://WWW.NASBP.ORG

Table of Contents for the Digital Edition of Surety Bond Quarterly - Summer 2017

NASBP Upcoming Meetings & Events
2017–2018 Executive Committee
From the CEO: Bringing Summer Heat: A Rundown of “Hot” Stuff in the Evolving World Surrounding Surety
Howard Cowan—Building on a Solid Foundation
Mitigating the Hidden Risks in the “New Normal” Construction Environment
Acting Director of the U.S. SBA Office of Surety Guarantees
Drones Take Flight in the Construction Industry
2017 AIA Contract Documents: Selected Key Changes
NASBP to Release Continuing Education Course: Joint Ventures in Construction
How Can Construction Contractors Expedite Payment on Federal Contracts?
Insurtech for Surety: The Future Is Closer than You Think!
Index to Advertisers
Surety Bond Quarterly - Summer 2017 - Intro
Surety Bond Quarterly - Summer 2017 - cover1
Surety Bond Quarterly - Summer 2017 - cover2
Surety Bond Quarterly - Summer 2017 - 3
Surety Bond Quarterly - Summer 2017 - 4
Surety Bond Quarterly - Summer 2017 - 5
Surety Bond Quarterly - Summer 2017 - 6
Surety Bond Quarterly - Summer 2017 - 2017–2018 Executive Committee
Surety Bond Quarterly - Summer 2017 - 8
Surety Bond Quarterly - Summer 2017 - From the CEO: Bringing Summer Heat: A Rundown of “Hot” Stuff in the Evolving World Surrounding Surety
Surety Bond Quarterly - Summer 2017 - Howard Cowan—Building on a Solid Foundation
Surety Bond Quarterly - Summer 2017 - 11
Surety Bond Quarterly - Summer 2017 - Mitigating the Hidden Risks in the “New Normal” Construction Environment
Surety Bond Quarterly - Summer 2017 - 13
Surety Bond Quarterly - Summer 2017 - 14
Surety Bond Quarterly - Summer 2017 - 15
Surety Bond Quarterly - Summer 2017 - 16
Surety Bond Quarterly - Summer 2017 - 17
Surety Bond Quarterly - Summer 2017 - 18
Surety Bond Quarterly - Summer 2017 - 19
Surety Bond Quarterly - Summer 2017 - Acting Director of the U.S. SBA Office of Surety Guarantees
Surety Bond Quarterly - Summer 2017 - 21
Surety Bond Quarterly - Summer 2017 - Drones Take Flight in the Construction Industry
Surety Bond Quarterly - Summer 2017 - 23
Surety Bond Quarterly - Summer 2017 - 2017 AIA Contract Documents: Selected Key Changes
Surety Bond Quarterly - Summer 2017 - 25
Surety Bond Quarterly - Summer 2017 - 26
Surety Bond Quarterly - Summer 2017 - NASBP to Release Continuing Education Course: Joint Ventures in Construction
Surety Bond Quarterly - Summer 2017 - How Can Construction Contractors Expedite Payment on Federal Contracts?
Surety Bond Quarterly - Summer 2017 - 29
Surety Bond Quarterly - Summer 2017 - 30
Surety Bond Quarterly - Summer 2017 - 31
Surety Bond Quarterly - Summer 2017 - Insurtech for Surety: The Future Is Closer than You Think!
Surety Bond Quarterly - Summer 2017 - 33
Surety Bond Quarterly - Summer 2017 - Index to Advertisers
Surety Bond Quarterly - Summer 2017 - cover3
Surety Bond Quarterly - Summer 2017 - cover4
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