Over this past summer, our colleague Mario R. Nicholas penned an article for the Daily Journal of Commerce entitled “Can Artificial Intelligence Be Trusted to Draft a Construction Contract?” It is a great read, and we borrow from it here in many places.
In his article, Mario principally focused on why chatbots like ChatGPT are not quite ready to replace attorneys for the drafting of construction contracts. Here, we focus on whether these chatbots can be an effective tool for the construction attorney in the drafting of construction contracts.
Generally, an attorney, construction or otherwise, who is not intimately familiar with construction contracts has no more business using something like ChatGPT than a layperson does. Mario used the example of an EPC agreement. As he said, a layperson has no business using something like ChatGPT to create an EPC agreement. But neither does an attorney lacking EPC experience. As authors of EPC agreements can attest, EPC agreements are highly specialized documents, and attorneys lacking specific expertise should be learning from trusted sources, not an AI bot.
Mario also stated that “many construction projects also rely on customization of template contract forms, such as those generated by the American Institute of Architects [AIA], DBIA, or ConsensusDocs.” Here is an area where something like ChatGPT may prove to be useful for a construction attorney who is already familiar with these forms.
By way of example, the AIA A201 (a very commonly used AIA form) does not specifically contain a force majeure clause. Perhaps we would like to add one (and let’s pretend we do not already have access to dozens of vetted force majeure clauses). By asking Chat GPT to “provide a construction force majeure clause,” it spits out a fairly lengthy, seven-section article, and the language really isn’t all that bad. If we modify the request to “provide a guaranteed maximum price force majeure clause,” it even gets into the distinction between modifying contract time and contract price. But that said, in both cases, there is quite a bit of language we would need to tweak to make the provisions acceptable. As an example, for representing the owner, the definition of a force majeure event is a little too broad for our taste. Also too broad is the right of the contractor to terminate the contract if a force majeure event were to occur. The point, however, is that so long as we have the experience to catch and revise these items, ChatGPT and its counterparts can be a great tool.
Here is another example: A chatbot is not going to catch (we tried) Oregon Revised Statute 654.150, which contains specific requirements for sanitary facilities at construction project sites for projects estimated to cost $1 million or more. The AIA A201 does not contain this language either. However, if an attorney is aware of this (or similar) jurisdiction-specific requirement, he or she can use ChatGPT to generate language to add language in order to comply with ORS 654.150. Attorneys should still expect to edit the language generated and ensure that it is in fact compliant with the law. But ChatGPT can be a great starting point—and much more efficient than coming up with language from scratch.
In summary, AI bots can be a great tool for us lawyers, but in our opinion ChatGPT and similar tools merely are a starting point. Attorneys may someday freely admit that they use AI, but attorneys are not much better off than laypersons if they are outside their comfort zone on a particular subject matter or if they do not spend an appropriate amount of time working with the generated results.