David Stutzman
I just completed review of a new document that the Construction Specifications Institute (CSI) will be publishing soon: The CSI Sustainable Design and Construction Practice Guide, one of a series of practice guides. The guide references the CSI flagship document MasterFormat® when discussing where requirements for sustainable design should be specified - Division 01 as part of the specifications.
Specifications include the qualitative requirements (what, performance, and result), of construction contracts. Drawings contain project quantitative requirements (where, size, number). The contract and conditions include the legal requirements (parties, cost, time, and responsibilities). All these requirements have one common aspect: all are measurable.
Specifications are filled with requirements. Specifications are one part of the construction contract - defining the contractor's performance obligations. Sustainable design performance is specified as a series of goals rather than particular requirements. The goals are set for the owner, the design team, and the construction team. The concept of sustainable design as goals is promoted by LEED in its credit descriptions and scorecards. The scorecards, with the "?" (Maybe) column, highlight the notion of credits as goals.
A Goal Is a Goal Until It's Specified
A goal is a target, a conclusion to aspire to achieve. Specifications are definitive requirements that must be met as a contractual obligation.
A New Year's resolution is a personal goal. What happens when we fail to meet the goal? Disappointment, frustration, even embarrassment - perhaps, but usually nothing of serious consequence.
Including a goal within a specification imparts an entirely different meaning and potential consequence. Once specified, a sustainable design goal becomes a contract requirement. The contractor will be obligated to perform to meet the requirement. Failure is no longer inconsequential. Failure may be a breach of contract, and not just for the contractor.
What if a rating is required by a regulatory or funding agency that has jurisdiction over the project? For publicly funded buildings many states require that buildings greater than a threshold size must meet LEED Silver certification. What is the consequence for failing to comply with the law?
So when a design team marks a LEED scorecard in the "?" column, will the specifications require compliance? Can the contractor rely on the owner and design team to perform allowing the credit to be met? Must the contractor meet the credit? And what if he fails? What if the owner or design team fails? Oh, well it's only a goal, unless of course, it was actually required to meet the specified certification level. I can imagine the attorneys will be happy to help sort it out.
Architect's Limited Liability
Under AIA B101 - Standard Form of Agreement Between Owner and Architect, the 2007 edition does not include certification under a sustainable design rating system as a basic service. AIA uses B214 - Standard Form of Architect's Services: LEED® Certification as a means to identify the architect's services for sustainable design certification.
Neither AIA B101 nor B214 includes any consequences for failing to meet a specific building rating. However, that does not preclude the owner from seeking a remedy when specified requirements are not met.
What Does the Architect Control?
The requirement for a project to achieve a sustainable design building rating must come from the owner. However, under B101 the architect is obligated to provide a preliminary evaluation of environmentally responsible design alternatives to the owner and reach an understanding with the owner regarding those findings.
When using B214, the architect must conduct a predesign workshop to review the project goals, select the desired credits, and set the strategies to achieve the goals. Assessing the impact on the owner's budget is required as part of the process. Budget issues should not be left to be a surprise later in the design process. Following the workshop, the architect must prepare a certification plan that is updated and maintained throughout the design process.
The only contract document that the architect must produce under B214 to document sustainable design requirements is specifications. The specifications must incorporate the sustainable design requirements and must define the contractor's obligations.
As last step before starting construction, the architect must conduct a pre-bid meeting and explain the differences between standard construction practices and sustainable construction practices.
Control Passed to Contractors
Project specifications pass responsibility for meeting some sustainable design credits to the contractor. These are generally project global material requirements and contractor process requirements. The design team cannot control the source for all the products the contractor may purchase. Compliance with a regionally-sourced-materials sustainable design credit is primarily contractor controlled.
However, some credits are entirely design team controlled - daylighting for instance. The contractor cannot control the size, location, and type of windows contributing to daylighting project spaces.
When specifying a project's sustainable design credits, architects should include only those for which the contractor exerts some level of control. Indiscriminately including an entire sustainable design checklist with owner and design team responsibilities as a specification requirement may suggest a degree of control by the contractor that simply does not exist. The design team can include sustainable design checklists in Division 00 as available project information without the checklist becoming a specification requirement.
Some credits require control to be shared between the architect and the contractor. The architect may select a specific product or manufacturer to meet a high percentage of recycled content. If the specified selections cannot meet the sustainable design intent, is it the contractor's responsibility to make the correct selections to meet sustainable design goals? What if substitutions are not permitted?
Unintentional conflicting obligations may exist.
Manage Expectations and Results
- Know the standard of care for both the design and construction team.
- Be careful that advertising and sales materials do not promise results.
- Do not contract for specific results, especially those beyond your control.
- Clearly assign responsibility for each sustainable design credit.
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