First, and most important, please note that this article is not meant to provide any legal advice. It does address the issue of certification responsibilities under LEED or any green building performance. While an owner may desire a new or existing building to meet LEED standards and hire an engineer or architect to prepare design documents to achieve this, the owner must understand that LEED certification is met based on actual, measured achievements. Thus, the final performance and the construction and implementation of features must successfully reflect the design parameters to meet the green standards. Despite the best intentions of the design and construction professionals, a building may fail to meet an intended green standard. If a standard is not met, how may fault be assigned or breach of contract determined and how can design and construction firms protect themselves?
The two keys to addressing these potential problems are to have a strong team of technical experts involved in the project and clear contractual language terms. It is best for the engineer or architect to work with a contractor they know, trust, and is knowledgeable about LEED or whatever green building standards need to be achieved – a contractor that through experience has shown will not “cut corners” and will follow through rigorously on all requested portions of the design documents. While engineers and architects are aware of standards like LEED and their education enables them to understand and appreciate its requirements, construction professionals are less in tune and may have less of an understanding of them. Short cuts – particularly under pressure (perhaps even from the owner) to cut back on features to meet budget – may result in failing a green building standard goal. Therefore, researching and developing a relationship with a contractor that fully understands and will work to meet a green building standard (or at least recognize and communicate to the team when there is potential for problems that could lead to failure to meet it) and insisting that such a firm work on the project is critical.
In addition, contracts between parties are critical. They should be clear that the engineer, architect, and contractor do not guarantee that the completed project will meet the desired certification. This is important not just because something may go unexpectedly wrong in the design or construction to fail a standard but also because certification is dependent upon third party approval which is something nobody wishes to be beholden to. While the contracts may provide for inclusion of various green design or construction features and a strong professional effort to meet the goals, requiring success in certification should be avoided. An alternative may be to include wording in contracts that do not tie the project to certification of any standard, but works toward the goal of a more sustainable building. Work with the proper legal professionals to ensure protection from liability of a project not meeting a desired standard while achieving improved building performance.
Once again, this article does not constitute legal advice and should not be construed to do so. Speak to a legal professional.
Marc Karell is the owner of Climate Change & Environmental Services. CCES can help you with the technical aspects of designing better performing buildings for your benefit whether to meet a specific green building standard or save money and improve building values and reduce expenses. Read more useful material in the company’s blog: www.CCESworld.com/blog.