Out-Law Analysis 8 min. read
28 Feb 2022, 3:18 pm
The connected construction site of the future can boost productivity, reduce inefficiencies, improve safety, and make it easier to predict the cost of projects.
But there are barriers to this becoming a reality, requiring changes to traditional approaches to procurement, delivery and business models. The right mix of connectivity standards is needed, and this will mean navigating licensing issues. Regulatory requirements – including in relation to telecoms and on cybersecurity may need to be addressed.
Despite these challenges, there is a path to the connected site of the future.
Whether the deployment or use of technology is being considered in the context of a specific construction project, to support the operate phase of an infrastructure asset or to transform an individual business or organisation’s own processes and operations, it is critical to develop an effective strategies and plans that factor in relevant requirements for delivering a connected site.
Such strategies and plans should be informed by input from stakeholders and industry – including potential partners, suppliers and technical experts. They should be developed early on and should not only govern the development phase of the project but also, where relevant, take account of ‘in life’ and ‘end of life’ considerations.
The 'right' strategy should always be driven by required objectives and outcomes. These should be aligned and shared by all relevant partners and stakeholders in a project. In most cases, no one single technology, solution or vendor will of itself deliver the desired end result, and technology should therefore be considered as an enabler to the bigger picture solution.
Processes, people and all other core enablers and dependencies should be identified, understood and given due and proper consideration. To implement the strategy, for example, changes may be required to existing processes, processing power and energy supply requirements, or dependencies on third parties and external processes such as those involved in applying for spectrum licences, and this will need to be factored into plans accordingly.
Ultimately, whatever the required objectives and outcomes are, a connected site is likely to be delivered by a combination of hardware, software and services. Multiple technology providers and vendors will likely be involved. The solutions could potentially involve a mix of private and public networks, 5G and other communication technologies, all of which introduces a further layer of complexity to be worked through when trying to understand and determine the requirements for the project and developing associated strategies and plans.
The connected site will ultimately be delivered by activities and processes supported and enabled by a combination of hardware, software and related services. Core technology components need to be identified, planned for, sourced, procured and paid for. Crucially, they must also be integrated so as they provide an end-to-end solution that supports and enables required processes and outcomes.
While many construction and engineering businesses are investing in their digital and technology capabilities, it is inevitable that there will be a high dependency on third party products, services and expertise to deliver the required technology and connectivity components of a given project.
The objectives and desired outcomes of the project, what needs to be procured and who is providing funding are all factors that will shape how the necessary technology, services or skills should be accessed. This might be achieved, for example, by bringing a contractor within the umbrella of the project or wider collaboration, or by procuring the solution from the supply chain. There must also be consideration of who is best placed to take on the required roles and responsibilities and manage the associated risks.
It is vital that businesses partnering on a construction project share the same understanding, early in the process, of what the main roles and responsibilities are for delivering the required technology. This will ensure that all core dependencies are identified and addressed, and risks highlighted, allocated and mitigated, in the planning, procurement and delivery processes and appropriately documented in the contractual arrangements.
The right approach to procuring, and funding, technology and connectivity solutions should be dictated by the overarching objectives and outcomes that have been identified for delivering a connected site.
For certain projects, it may be appropriate to procure required technology solutions. This is the approach that HS2 Ltd, the company tasked with delivering the ‘high-speed 2’ rail infrastructure project in the UK, adopted when it tendered for contracts to deliver new telecoms systems.
In other cases, businesses themselves will invest in technology and connectivity solutions as part of a project supply chain or more generally as part of their own individual digital transformation journeys. Atkins, for example, established its own new applied technology practice in early 2021 after demand for digital and technology capabilities grew in all of its markets. Costain has also invested in its digital offering as part of its ‘leading edge’ business strategy, carrying out more consulting and digital-focused work for clients, which it expects will deliver higher margins with a lower risk profile
Government bodies and industry are also increasingly looking to innovation projects to test technology and prove concepts and use cases. An example of this is the BAM Nuttall, AttoCore and Building Research Establishment consortium’s 5G AMC2 project which secured funding from the UK government’s Department for Digital, Culture, Media and Sport as part of the department’s 5G testbeds and trials programme.
Connectivity within and beyond the site will be important to connect devices and systems and ultimately enable data to flow within the site or wider project ecosystem, for example to off-site production facilities, control centres, and on-premises or cloud-based hosting services. It is likely that a mix of private and public networks, 5G and other communication technologies will be needed to provide the connectivity required.
Projects will need to think about whether a site needs its own standalone 5G network, and whether this is technically and commercially feasible, or if a 4G LTE network or other alternative communication technologies will deliver the required connectivity.
There is no denying the potential of 5G networking capabilities, but this will require multiple networking technologies to be set up – low band frequencies to provide wider coverage, but which lack speed; high band frequencies to provide speed and low latency, but which lack coverage; and mid-band to provide a compromise between speed and coverage. This sort of connectivity on remote construction sides is still some years away, outside of individual pilot initiatives.
Capacity, coverage, service and security requirements all need to be determined, and network architecture carefully designed, potentially providing for scaling and future-proofing.
This will determine what type of network is best-suited to the project – whether a private mobile network, where network infrastructure is used exclusively by the project or end user organisation; a virtualised private mobile network, where users can access 5G connectivity in their own virtual network ‘sliced’ out from physical infrastructure that is also used by others; or a hybrid network that adopts a combination of both approaches.
Consideration also needs to be given to the transmission and backhaul specification to provide end-to-end connectivity and ultimately support and enable required end user applications and solutions.
Specific legal and regulatory requirements arising in the context of connected construction sites also need to be considered.
Increasing the number of connected devices and volume of data within a construction site or project ecosystem brings with it the increased risk of cybersecurity incidents and data breaches. The move towards smarter and connected infrastructure and the use of technology and automated processes to control operations further increases the cyber risk.
The infrastructure sector has become an increasing target for cyber crime, with a number of leading construction companies falling victim to cyber attacks in recent months. One of the reasons infrastructure companies are targeted is because of their role in operating critical national infrastructure.
Larger organisations in the sector are not the only ones at risk. Many large firms rely on subcontractors, and these companies – many of which are SMEs – are often seen as softer targets. An attack on a subcontractor or other member of the supply chain can result in very significant disruption to the overall project or impact on the main contractor’s overall business, with potential financial, reputational or regulatory consequences. Therefore, supply chain management from a cyber security perspective is essential.
In the UK, many parts of the infrastructure sector will subject to the Network and Information Systems (NIS) Regulations, which place obligations on operators of ‘essential services’.
The future connected construction site may lead traditional infrastructure companies into unfamiliar regulated environments, particularly in relation to telecoms.
In the UK, for example, the Communications Act 2003 sets ‘general conditions’ that must be complied with by communications providers. The conditions differ depending on whether the provider provides ‘electronic communications networks’ or ‘electronic communications services’.
The Electronic Communications Code, developed under the Digital Economy Act 2017, is also potentially relevant. It provides the framework setting out certain rights and obligations in relation to the deployment and maintenance of mobile masts and other telecoms infrastructure.
The Wireless Telegraphy Act further provides the licensing regime for the use of radio spectrum in the UK. Last year, telecoms regulator Ofcom confirmed it would be requiring Wireless Telegraphy Act licensees to comply with the internationally agreed levels in the International Commission on Non-Ionizing Radiation Protection (ICNIRP) guidelines for the protection of the general public from electromagnetic fields (EMF). Whilst this change is being imposed on licence holders, the requirements may flow down into their contracting arrangements. Legal advice should be sought early on to ensure that project specific risks and issues are considered in upfront strategies and planning.
Mobile networks rely on access to spectrum. This presents a challenge for interested parties that are not conventional spectrum-holding businesses.
One option is to partner with a holder of licensed spectrum, such as one of the major mobile network operators. Other routes are, however, available.
For example, Ofcom offers two types of licences aimed at reusing underused spectrum and opening up certain spectrum bands to a wider range of stakeholders – a 'shared access licence' and a ‘local access licence’ to enable 4G and 5G private networks to support rural and other remote connectivity requirements and localised wireless connectivity for indoor and industrial applications.
Specialist advice should be sought to determine optimal power levels and spectrum bands, taking into account intended applications and use cases. Ofcom managed processes and other dependencies, such as the responsiveness and willingness of mobile network operators, will need to be factored into strategies and planning upfront.
Like previous generations of cellular and other communications technologies, 5G is a standards-based technology. Use of standardised communication technology means great interoperability as devices made by different manufacturers can ‘speak’ to each other. Standards are developed by businesses working together in collaboration under standardisation bodies such as the European Telecommunications Standards Institute (ETSI). If a patented technology becomes part of a standard and it is mandatory to implement that feature as part of the standard, that patent is termed a standard-essential patent (SEP).
The SEP holder can ask implementers to pay a royalty for using that technology. However, standardisation bodies typically require SEPs to be made available to any potential implementer of the standard on fair, reasonable and non-discriminatory (FRAND) terms. The FRAND licence rate is agreed between the parties by commercial negotiation, but often disputes arise as to what constitutes 'FRAND'. If the SEP holder and the technology implementer cannot agree on FRAND licence terms, these will require determination by a tribunal. The courts in England and Wales have indicated their willingness to set FRAND terms on a global basis.
Owners of patents essential to the 3G and 4G mobile connectivity standards have been able to derive significant income from patent royalties from the growing number of businesses across sectors that seek improved connectivity. The potential patent licensing market for 5G is much larger than 3G and 4G since the technology will be required across a broader range of applications. With various entities having already indicated that they hold 5G SEPs, infrastructure businesses should expect the licensing of 5G technology to become an increasingly important consideration for delivering a connected construction site.