June 17, 2010

Canadian contractors warned about LEED certification failure

JEAN SORENSEN

correspondent

VANCOUVER

There’s a green threat dangling over Canada’s construction industry, delegates attending the “LEEDing the Contractors” session heard at the 2010 Canada Green Building Council (CaGBC) national conference held in Vancouver June 8-10.

So far, no buildings in Canada have failed to achieve planned LEED certification because of contractor or integrated design team error, but this is something that has happened in the U.S., said Cam Munro, LEED AP, CTR, and an Alberta contractor, whose company Clark Builders has worked on 35 LEED projects.

The failure of the U.S. projects to obtain the certification has been highly publicized.

The Canadian contractor or design team that fails to meet the standard would be the very first to blow it, said Munro.

“The news would go through the industry like wildfire,” he said. “Will you ever get another contract?”

He discussed one project in the U.S. that was embroiled in a lawsuit and the Green Real Estate Law Journal, which tracks LEED litigation, has recorded a number of other cases relating to LEED buildings, their content and certification.

The earliest case was Southern Builders v. Shaw, which settled out of court.

It was originally filed in Maryland in 2007 with a proposed hearing date of 2009.

The building didn’t receive its expected LEED rating and the developer didn’t get the Maryland tax credit.

Southern foreclosed on the project and Shaw counter-sued. No details of the out-of-court settlement were disclosed.

In spring 2010, owners of the condominium units in the LEED Gold-hopeful Riverhouse development in lower Manhattan’s Battery Park City filed in New York County Supreme Court seeking damages of $1.5 million from the project’s developer.

The lawsuit was for a variety of alleged construction defects and an alleged faulty green heating system, which differed from the official plan.

This is the first case against a developer of a green building who failed to deliver the project as represented during pre-construction.

Another spring 2010 appeal case before the U.S. Green Building Council review committee involves the Northland Pines High School in Eagle River, Wisc.

It was certified, but didn’t meet the exact specification it aimed for. It was the first time that a third party has appealed LEED certification.

The appellants maintain it shouldn’t have received certification and have drawn attention to the U.S. Green Building Council’s certification process.

As more contracts are setting LEED certification as a condition of contract fulfillment (not merely a proposed target) with penalties attached for non-compliance, there is a greater need for the contractor to ensure clarity.

They must make sure they determine what areas of the construction fall within their responsibility.

The contractor must also ensure they have a clear understanding of what LEED documentation is required both in the office and from sub-trades and tradesmen to meet and verify those targets.

He said it has been his experience that if a contractor didn’t get the documents while the sub-trade was on site, the chances of getting it were slim to none.

A strategy that contractors could employ, he said, was to write in a “hold-back” clause into the sub-contractor or sub-trade work agreement or contract, that hinges upon documentation delivery.

This kind of system also allows for an incentive payment that rewards sub-contractors who deliver documentation early.

Munro talked about having clearly defined systems in place that allow employees to meet target objectives, such as waste recycling.

“How do you deal with all those bins on site?” he asked.

“You put signs on them (designating contents),” he answered.

To better understand the efficiencies of a paperless office, he said, he’s hired some younger employees who are more used to working on computers.

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