Green Building Law Update
Federal Green Building Code Creates Unnecessary Risks and Costs
Someone recently asked me why I was baffled about the Department of Defense's decision to use both LEED and a green building code. Here are two reasons:
1. The policy is a waste of taxpayer money.
2. The policy unnecessarily increases risks for government contractors.
LEED + Green Building Code = Duplicative Costs
This concept is so logical to me that I have had trouble articulating it.
The Department of Defense has proposed a green building code in order to streamline the process of applying for LEED certification. However, obtaining certification and complying with an overlapping green building code will result in duplicative costs, particularly on the administrative side.
First, a contractor will have to review the green building code, ensure that it is complying with the code, and then submit documentation to the contracting officer to show compliance.
Second, the contractor will have to review the LEED rating system, ensure that it is complying, and then submit separate documentation to the Green Building Certification Institute (GBCI) to apply for certification.
Let's assume the best case scenario -- the green building code and LEED rating system requirements completely overlap (this will never happen). The contractor will still have to compile separate documentation for a contracting officer and a GBCI reviewing authority. And because the contracting officer and GBCI reviewing authority work independently, each individual will have separate questions, requests for clarifications and interpretations.
Because the contractor will be working through two separate entities and submitting two sets of paperwork, the contractor will be completing twice as much work. Twice as much work means the project will get more expensive.
Two Interpretations Will Lead to Conflicts
It's human nature for two people to interpret the same clause two different ways. This happens with LEED credits all the time. When these differing interpretations occur, solutions can be worked out internally with GBCI.
But differing interpretations becomes a more risky proposition if the DoD simultaneously incorporates a green building code and LEED certification requirements in the same contract.
On a typical DoD construction project, there is one contracting officer responsible for delivering a project on time, according to the contract and specifications. The contracting officer has final authority to interpret and enforce the plans and specifications.
Once the DoD institutes its green building code, a contracting officer will be responsible for interpreting and enforcing it.
Simultaneously, a contractor working on a green building will also have to submit for LEED certification to the GBCI.
You probably know where I am going with this. The following scenarios will likely arise:
- Example A - Government Contractor is hired to construct a building that complies with both LEED and the DoD green building code. Both LEED and the code require installation of a particular bike rack. The contractor installs a bike rack and submits for a LEED credit related during the design phase. GBCI approves the credit. At the end of the project, the contracting officer finds the contractor did not install the specified bike rack. Does the Contractor lose its certification? Can the Contractor point to the approval of the LEED credit to overrule the contracting officer? Does the GBCI have inherent authority to interpret a government contract specification?
- Example B - Contractor completes a project that had to comply with the DoD green building code and get LEED certification. A contracting officer finds the project was completed in accordance with all green building codes, including the installation of a bike rack. Months later, GBCI finds that the contractor did not install the proper bike rack for LEED certification. LEED certification is denied. Who is right? Did the Contractor breach its contract by not achieving LEED certification even though the contracting officer approved the bike rack?
I don't know the answer to these questions. Government contractors will face more risk if they have to comply with both a green building code and overlapping LEED certification. There will be conflicting interpretations when contracting officers and GBCI reviewing authorities interpret the same requirements.
In short, this could get very messy.
Sustainability & Green Real Estate Attorneys
15 East Chesapeake Avenue
Baltimore, Maryland 21286-5306 USA