Sustainable Design Services: Keeping It Real

Transcription

1 Hanover Architects & Engineers Advantage Sustainable Design Services: Keeping It Real The dwindling supply of natural resources and the diminishing quality of the air we breathe are issues that impact every aspect of the world s economy and pose difficult questions relating to how far is far enough in taking steps to protect the environment. What are the costs? What are the benefits? What are the risks? What is the return on investment? These are all questions that must be addressed when investing in sustainability. These are questions that project owners and design professionals must wrestle with when designing green buildings, schools and highways. As hard as it is to manage even the most straight forward design project, delivering a successful green project is even harder. Doing what s doable in the real world is the key to managing sustainable design risk. Here are steps that firm principals and project managers can take to keep their sustainable projects real : Websites, marketing materials and proposals When promoting sustainable services, design professionals must avoid over-selling their capabilities. Websites, marketing materials and proposals that profess super-human results should be avoided. Plaintiff attorneys are more than willing to take design firms to task when overzealous marketing collides with an unhappy client. Here are some actual marketing pitches that may have gone a bit too far: Our sustainable design services are available to clients and project partners who desire experience with systems thinking, integrated design processes, sustainable rating systems such as LEED and Living Building Challenge, material optimization, natural resource protection and daylight and energy design, and analysis. Our sustainable consulting services transform triple bottom line performance from potential to reality. We address operational and occupant issues to help clients develop strategies for reducing costs while minimizing their environmental impact. We also design high-performance, sustainable spaces for building tenants.... we can promptly assess sustainable design options with accurate cost data. A building s green quotient can be documented in the beginning of the process assuming that sustainability is an integrated component of the building and without added cost. Review marketing materials and website postings for language that could arguably raise the professional standard of care. Edit proposals and remove the super human stuff that can t be accomplished in the real world. Avoid words such as accurate, high performing, and any other combination of words that lean towards establishing a perfection standard for professional services.

2 Clearly articulated program/scope of services A clearly-defined program/scope of services, developed in partnership with the client, is invaluable. Walk the client through the sustainable process. Discuss the cost and schedule impacts that come with a green project. Explain that the variables, unknowns and shared accountabilities make it impossible to warrant the success of any sustainable project. Document that any level of desired sustainability is a goal and not a guarantee. Involve key players in drafting the program/scope of services including the client s project representative, and the firm s project executive and project manager. The project owner, designer, and constructor all play a role in certifying sustainable projects. Clearly establish the accountabilities for pursing each sustainable criterion, including the goal for achieving the points needed for certification. No sustainable warrantees, guarantees or certifications Providing sustainable design services often crosses paths with uninsurable warrantees, guarantees and certifications. While being enthusiastic about providing environmentallyresponsible designs is understandable, pledging that a project will achieve any stated level of green certification isn t. Exclusion seven of The Hanover Architects & Engineers Advantage policy states: Review contracts for language that could be construed as a guarantee, warranty or certification. Do not agree to any guarantee, warranty or certification that increases the generally accepted standard of care. Demand an insurable standard of care Getting caught with contract language that raises the standard of care beyond that which is required by law and covered by professional liability insurance can be an especially thorny issue in the new age of sustainable design. Don t agree to contract language that positions you as an expert in the emerging field of sustainability where there is still a long way to go before the design community and the courts provide guidance on what acceptable green design is supposed to look like. Strike all contract language that could be construed to raise the standard of care. Include an insurable standard of care: The Design Professional shall perform its services consistent with the professional skill and care ordinarily provided by other design professionals practicing in the same or similar locality under the same or circumstances. Don t agree to contract language that measures your performance against a nationwide population of design professionals in other localities under different circumstances. 7. Based upon, arising out of, or in any way relating directly or indirectly to any warranty or guarantee by you; however, this exclusion will not apply to any guarantee that your professional services conform with the generally accepted standard of care applicable to that professional service.

3 Be demanding of new products/materials If necessity is the mother of invention, then sustainability is the father of new green products and materials. These new building components, while promising to meet or exceed expectations, may not have an equally impressive track record of success in the field. The project owner needs to be aware of the risks associated with new sustainable products and be willing to sign off on their use. Make experimental products and materials a standing agenda item for client and design team meetings. Make the client/project owner responsible for new and experimental products. Document all decisions. Execute a document similar to that of the AIA Trust s Client Waiver and Informed Consent To Use Experimental Green Product. A copy of this form can be found at: Waiver-Informed-Consent.pdf Managing green expectations Many, if not all, project owners want to know how much sustainability will cost them upfront and how long will it take them to recoup their investment in green once the project is completed. Sustainability costs, returns on investment, and pay back periods are difficult to predict and even more difficult to quantify with a reasonable degree of certainty. Don t venture beyond the limits of what can be determined by recognized standards used to develop sustainability metrics including energy efficiency and water usage. Use established and trusted standards and modeling techniques. Be careful not to make any statements that could be construed to represent specific savings relating to any given sustainable decision. Review all correspondence, including meeting notes, for any language promising specific sustainable outcomes. Expect longer project timelines Green projects can take longer to design and construct than similar non-sustainable projects. Sustainable information can take longer to develop. Sustainable decisions can take longer to make. Sustainable building components can take longer to approve, fabricate, deliver, and install. Commissioning can extend design, construction, and facility start-up timelines. Include ample time in the design schedule for gathering information, making decisions, and obtaining client/project owner approvals. Address the timeline for the fabrication and delivery of sustainable design components that may impact construction. Seek input from manufacturers, suppliers, and constructors. Include provisions in owner-contractor agreements that address unforeseeable delays in securing sustainable products and materials including scenarios where a sustainable component may no longer be available.

4 Commissioning Facility commissioning is so critical to the success of sustainable projects that it has become a mandatory requirement of most recognized sustainable certification protocols. Secure the client s/project owner s commitment to retain a qualified commissioning agent at the programing stage of the project. Impress on the client/project owner that the commissioning agent s contract must provide for continuous involvement throughout design and construction as well as start-up of the completed facility. Be prepared to notify the client/project owner if it is determined that the commissioning agent s contract is lacking in the services needed to meet the demands of sustainable design. Descriptive vs. performance specifications Drafting technical requirements starts with selecting the right format. Design professionals have two options descriptive or performance specifications. Descriptive specifications require written explanation of the attributes that are essential for a material or product to meet project requirements. In contrast, performance specifications set forth performance-based criteria but not the design, manufacturing or assembling process needed to meet the specification requirements. Performance specifications need to be doable in the real word. Specifying performance criteria for a sustainable building component that the marketplace cannot provide is a surefire recipe for a professional liability claim. Train staff on the use of descriptive and performance specification formats. Review specifications with a focus on making sure that the two formats are not comingled. Evaluate marketplace capabilities before drafting performance specifications. Waiver of consequential damages Project owners are often lured to sustainable projects by the promise of lower operating costs, tax credits, enhanced marketing, and higher lease rates. When a building fails to live up to its sustainable promise, the consequences can be significant. To keep the rewards in line with the risks, design professionals should include a mutual waiver of consequential damages in their contracts to avoid exposure to speculative and far-reaching damages. Explain to clients that assuming the risk for consequential damages is unreasonable. Advise staff that The Hanover Professional Liability Insurance Policy does not provide coverage for consequential damages. Include a mutual waiver of consequential damages in your professional services agreement.

5 Balancing sustainability with serviceability Sustainable designs must find an acceptable balance between scoring green-points and providing a functional facility. Selection of products, materials, and systems that advance sustainability goals at the expense of durability, must be made with care. Using a sustainable product with inferior serviceability may not be the best design decision. Don t make design decisions based solely on sustainable criteria. Keep it real Don t promise that a project will score enough points to go green. Don t guarantee that a project will achieve a certain level of sustainability a risk that is not covered by The Hanover Professional Liability Insurance Policy. While rewarding, sustainable projects come with new challenges and emerging liability exposures. Design professionals must balance their environmental enthusiasm with sound risk management practices. Present the client/project owner with the pros and cons of sustainable design options. Document decisions. Appoint a Chief Sustainable Design Officer Federal, state, and local sustainability laws continue to grow and evolve. Third-party certification organizations continue to fine tune and clarify their requirements. New products, materials, and systems continue to enter the sustainability marketplace. Design professionals must continue to stay on top of these developments. Appoint a firm Chief Sustainable Officer Constantly monitor the sustainability landscape Use legal counsel, insurance agents/brokers and Hanover as a resource for legal and risk management issues. Communicate and train staff on new developments. The Hanover Insurance Company hanover.com 440 Lincoln Street, Worcester, MA The Agency Place (TAP) Loss Control is the responsibility of your management. The recommendation(s) and contents of this material are provided for informational purposes only. This material does not purport to address every possible legal obligation, hazard, code violation, loss potential or exception to good practice. It should not be construed as indicating the existence or availability of any insurance coverage. Hanover Insurance Companies and their affiliates and subsidiaries specifically disclaim any warranty or representation that compliance with any advice contained herein will make any premises, property or operation safe or in compliance with any law or regulation The Hanover Insurance Group, Inc (12/14)