A program at the Philadelphia AIA Design on the Delaware annual conference last week, discussed the legal aspects of green building. The panelists used an outlandish hypothetical case to explore where the design pitfalls may lie. Issues ignored by the panelists were the sustainable design strategy and project contract requirements.

LEED Scorecard + Strategy

When starting the specifications for a sustainable design project we always request a copy of the LEED scorecard and the strategy for achieving each credit. The list is important to know what credits the design team will seek. But even more important is the information about how the team intends to approach the credit to be certain the design will meet the requirements.

Yes, No, and Maybe are the choices for each credit. The intent of Yes and No is quite clear. Any credit marked No is simply ignored – no strategy is required. Credits marked Yes should have a clear description – the strategy – of how the credit will be met. Simply repeating the LEED credit text is not enough.

Strategies will become more important with the release of LEED version 4. More of the credits include options to earn the points. The strategy must identify the option and describe the means to meet the requirements.

The intent of Maybe is nebulous. Any credit marked Maybe should be accompanied by a discussion of what must be done – the strategy – to resolve the credit decision to Yes or No. As the design progresses with a stated strategy, the team has an outline for the path to determine if the credit can be met. The team must explore the options defined by the strategy to reach a conclusive Yes or No decision.

Once decided, adjust the scorecard to show the new status. Do not leave the credit as Maybe, thinking that a bit of luck or a creative contractor can turn the credit into a Yes with no additional design effort. Remember the scorecard was created as a preliminary design tool to help identify the sustainable design initiatives. The scorecard was never intended to become part of the contract documents.

Goals Are Not Requirements

Ultimately, the LEED credits must be specified as contract requirements. Goals are not requirements and cannot be enforced as such. Specifications are contract requirements and must be met to complete the contract successfully.

Specifying a LEED credit as Maybe is not an acceptable approach. Would you specify the curtain wall performance as Maybe resistant to water penetration? Doubtful! Owners want an assurance that the curtain wall will not leak during a rain storm.

When owners demand a sustainably designed, LEED certified building, they are looking for assurances, too. They expect the contract documents will include requirements to ensure the project will attain the desired certification. Specifying LEED credit requirements as Maybe does not require contractor compliance.

Potential Legal Pitfall

Did the owner require LEED certification as part of the design and construction contracts? Be cautious of signing an agreement with this requirement. LEED certification is controlled by a third party, and there are no guarantees approval will be granted despite the design and construction teams’ best efforts.

If the construction contract includes Maybe credits, is the contractor required to comply? Beware of relying on achieving one of several Maybe credits to ensure LEED compliance. To earn the credit, the requirements must be met. Getting close, striving for a goal will not suffice to earn the credit. Neither the owner nor the design team can require a contractor to achieve any credit specified as Maybe.