Can You Guarantee LEED Certification?

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This week, we are going to be looking at an issue near and dear to me: guarantees of LEED certification.  Two publications from last week made clear to me the wide variety of views on the issue:

(1) Washington Business Journal's On Site, "Hot Potato" by Vandana Sinha (print only):

For the most part, these players have come together time and again to score a LEED designation and plaque.  But what happens when one of the parties comes up short, and the project misses its LEED goal?  Who's at fault?
...

Green building mandates make the question even more important. . . . "As more LEED mandates come out that require certification, this becomes a bigger deal," says Cheatham, a LEED-accredited D.C. construction attorney with Watt, Tieder, Hoffar & Fitzgerald LLP, where his primary job is to worry about risks associated with green building and things like the D.C. performance bond.  "That's actual cost.  That's money.  The owner will recognize that risk and more likely want to hold somebody accountable at the end."

(2)  CoStar, "Guaranteeing LEED Certification" by Andrew C. Burr:  

Energy Ace Inc., an Atlanta-based energy services and LEED consulting firm headed by Wayne Robertson, is offering what it calls the industry's first LEED certification guarantee.

At a time when many cities and states have begun mandating LEED-certified buildings, “We can offer clients a certainty that their project is going to be certified and remove that anxiety,” Robertson said.

...

“One of the senior architects was saying that these mandates are putting us in a position to offer a guarantee, and we can’t do that,” Robertson said. “And I’m thinking, yes we can.”

Who is right?  Is my concern about LEED guarantees warranted?  Or are companies like Energy Ace Inc. able to avoid issues surrounding LEED guarantees?  Are we both right?  

Photo: Wade Roush

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Comments (3) Read through and enter the discussion with the form at the end
Michael Gibbons - August 17, 2009 12:12 PM

Chris,
Thanks for posting an interesting article. The "guarantee" from Ace is less than meets the eye. The only "skin" at risk for Ace is the amount of their fee for serving as LEED administrator of a project that fails to achieve certification. They don't place at risk the majority of the fees they will receive for straight energy consulting work. Although the article does not expressly address the matter, it is implied that Ace would not be liable for the significant consequential damages that are really at the heart of the discussion of liablilty exposure for failure to achive LEED certification.
I give Ace credit for a bold and brilliant marketing move. There is, however, more sizzle than steak here.

Shari Shapiro - August 17, 2009 4:38 PM

Also--is their insurance co backing this up? strikes me, it would be a one hit wonder. One bad suit and the "guarantee" would disappear.

Chris Cheatham - August 17, 2009 9:15 PM

@Michael Gibbons - Thanks for your comment. You really nailed it - the key to the LEED guarantee being made is the limited liability. Quite the marketing effort as well.

@Shari Shapiro - Good question. I don't know the answer. Maybe someone from Energy Ace could come on and talk to us.

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