E. Mitchell Swann, P.E., LEED A.P.
A day doesn’t go by without hearing of the next new green building project in almost all sectors – from major owners to the one-off office park on the highway. Everybody wants to be ‘in,’ but it is important to understand what one is getting into before one is deep into it. Not recognizing the landscape can lead to problems, misunderstandings, and claims. A common thread in the analysis of construction claims is a comparison of ‘the work done’ by one participant with what a ‘comparable’ practitioner would do on a similar project. This is commonly referred to as “custom and practice,” or the Standard of Care.
Historically, this comparative approach has been applied to design professionals, contractors, and lately even construction managers [treatment of CMs as “professionals” is a relatively new concept but is gaining traction as their role in the project delivery process broadens]. No such standard has yet to be applied to owners.
One of the key elements of the ‘Standard of Care’ is the idea that services rendered by any [design] professional should be [at least] consistent with what a ‘similarly qualified’ professional would do on a ‘similar’ project with ‘similar’ circumstances.
But how does one define the ‘custom’ for something that is new? What would it be ‘similar’ to? While ‘Custom and Practice’ for traditional project design and delivery has been addressed numerous times over the years, the industry has been moving forward and changes in project expectations and execution methods have made ‘traditional’ delivery no longer the norm. How do ‘untraditional’ expectations and methods affect the normative “Custom and Practice”? How does one know if the bar has been cleared on the Standard of Care?
Green design and integrated project delivery are two new concepts which have changed the project landscape.
Green, or sustainable, buildings have certain expectations for the completed project’s energy and resource efficiency and, if statements by its advocates are to be believed, can result in increased workforce productivity. At a minimum, current market trends show ‘certified’ green buildings often command higher rents and are appraised at higher values in most markets. If ‘green’ is an objective, then Integrated Project Delivery (IPD) is the process for getting there. IPD, at its core, seeks to change the nature of the relationship between the owner, the contractor, and the designer from one which creates an adversarial atmosphere to a collective, collaborative arrangement with shared gains and risks. This requires a different mindset during project execution for all of the parties.
The green objective and the integrated methodology create new circumstances in which to consider what is expected and how to get there – the custom and practice. Let’s look at the ‘green building’ scenario.
If one is familiar with the USGBC’s “LEED” rating system, it is apparent that there are a number of categories in which a project collects ‘points,’ which are tallied and used to determine the ‘certification level’ of any particular project. Projects are rated at the following levels: certified, silver, gold and platinum. Many of the categories involve the concurrent input and/or leadership of the designer, the contractor, and the owner. The collective nature of sustainable design makes IPD a ‘natural’ choice for a delivery system for green buildings. Sustainability is only truly measurable over time and only achievable with the collective effort and cooperation of all project participants. A properly designed facility which is poorly built and poorly operated won’t achieve the goals; a poorly designed and built facility which is poorly operated will neither satisfy over the long term, nor will it retain its value as an asset.
If a sustainable project’s success depends on the immediate quality of design and construction AND the long term quality of maintenance and operation, which is the most critical ‘Standard of Care’? Design, construction, or operations?
Looking at both LEED NC 2.2 and the new (pending approval) LEED 2009 there are several areas where the Owner has the decidedly ‘upper hand’ in making ‘green’ green. Obviously the Site Selection, Density, and Brownfield Recovery sections are driven by the Owner. The designer and the contractor are constrained to work with what they’ve been given. If the Owner has secured a pristine spot of virgin land, then that is what the project ‘starts’ from and there is no opportunity to recover those points.
A more nuanced situation occurs in the “Energy & Atmosphere” (EA) Credits. Establishing the energy performance baseline is critical and it is done under the auspices of EA Prerequisite 2 – Minimum Energy Performance. Under this prerequisite a minimum 10% improvement over energy consumption as predicted by ASHRAE Std. 90.1 – 2007 is the target. There are both performance and prescriptive methods allowed to determine baseline performance and ascertain the most cost effective alternatives which will yield the requisite 10% improvement in energy consumption. Capturing more points for improved performance (EA Credit 1 – “Optimize Energy Performance”) can yield up to 19 points depending upon just how much savings the team is willing to go for in the LEED NC 2009 version. This ‘enhanced’ approach imposes a modeling regimen similar to the prerequisite points but provides up to 19 additional points corresponding to up to a 48% reduction in energy use, based on the model. An obvious concern is what happens if the predicted energy performance is not realized? This sounds like a pure design/construct issue, but there is a tie-in of the modeling effort to subsequent credits in the system. Determining performance becomes a critical issue.
Determining performance is addressed in EA Credit 5 – “Measurement & Verification” (M&V) is worth 3 points. The credit requires that provisions be made “…for the on-going accountability of building energy consumption over time” and that the project be provided with a process for corrective action in the event that energy performance fails to meet predictions. This evaluation is to occur no less than one year after project completion. One year is the typical time limit for ‘warranty’ coverage. The basis of comparison for ‘actual’ consumption is the model or prediction provided under E&A as mentioned above. The requirement for M&V is a logical step in the development of green buildings. The promise of performance without measurement is subject to ready challenge. Building systems are inherently complex and equipment, devices, and controls fall out of alignment and calibration so some sort of verification and measurement would seem essential to help achieve the desired goal of sustainability.
However, the requirement of ‘accountability’ over time for dynamic systems is not a common consideration in most construction contracts; and the energy performance of a building is rooted not only in design and construction but also very much in operations. These overlapping circles of involvement, impact, control, and accountability can create a number of questions.
- Do current contract forms address such a time dependent accountability and who is accountable to whom? Does the balance and extent of accountability change over time?
- How is compliance with the “…the owner’s project requirements, basis of design, and construction documents” to be verified? Commissioning will tell you details about the installation but what if the operating ‘outcome’ does not match the ‘expectation’?
- What provisions does the designer or contractor have to audit maintenance and operational records to ‘verify’ adherence to the specifications and design?
- Is there a minimum level of maintenance that is ‘customary’ in the industry to use as a ‘benchmark’ for the maintenance effort of any given operator? Is this uniform across all building types? Ownership scenarios?
- If the energy performance is not up to expectations and no maintenance or operational short-comings are discovered, is the excess energy cost a recoverable damage?
These are some of the issues and items which are not incumbent in traditional projects because overall ‘outcomes’ are not mandated to be time dependent nor is there an explicit expectation of specific performance requirements of the finished facility or the owner’s execution of their part of the work.
There are other items raised in the execution and evaluation of LEED green buildings – the use of green power, executing recycling programs, and the control of environmental tobacco smoke (covered by law under most jurisdictions) which involve the owner, but most of these are either static systems, involve issues or expectations which are outside the purview of either design of construction.
In order for all the participants to have a good feeling about the project, there must be a clear and uniform understanding of what each party is bringing to the table and how each hand-off is going to be made and what each party can expect to take away at the end of the day.
In future editions of the MDC Advisor we will look at the issues raised by IPD execution. We look forward to your feedback, questions or comments!