Three ways architects can manage risk when complying with building performance standards

Submitted by on Fri, 10/16/2020 - 13:06
{"version":"0.3.0","atoms":[],"cards":[],"markups":[["a",["href","https:\/\/\/committee","target","_new"]],["a",["href","https:\/\/","target","_new"]],["a",["href","https:\/\/\/contract-documents\/20736-owner-design-builder-agreement","target","_new"]],["strong"],["a",["href","https:\/\/\/contract-documents\/6290216-sustainability-consultant-scope-of-services","target","_new"]],["a",["href","https:\/\/\/resources\/6276047-d5032020-guide-for-sustainable-projects","target","_new"]],["a",["href","https:\/\/\/contract-documents\/6231509-sustainable-projects-exhibit-construction-manager-as-constructor-edition","target","_new"]],["a",["href","https:\/\/\/contract-documents\/6255317-sustainable-projects-exhibit-cma-edition","target","_new"]],["a",["href","https:\/\/\/contract-documents\/25161-sustainable-projects-exhibit","target","_new"]],["a",["href","https:\/\/\/contract-documents\/25141-owner-architect-agreement","target","_new"]],["em"]],"sections":[[1,"p",[[0,[],0,"An increasing number of jurisdictions throughout the United States are implementing building performance standards (BPS). Many require completed buildings to meet certain energy usage criteria based upon the building\u2019s size, use, and locality, among other factors. BPS also require periodic and ongoing reporting of the building\u2019s energy consumption and include penalties for building owners who fail to meet the targeted performance standards and fail to implement necessary improvements to achieve compliance. Because the ultimate goal of BPS legislation is to drive new and existing buildings to net-zero energy use or carbon neutrality at some point in the future, these standards may become increasingly more stringent throughout the lifecycle of the building. Accordingly, architects and engineers must consider not only the BPS in effect at the time a project is designed and completed, but also anticipate the tightening of BPS performance standards in future compliance periods. If a building fails to meet the BPS, architects should consider how to minimize the risk they face if an owner claims that the architect, rather than the owner, should pay the associated penalties or cover the cost of improvements ."]]],[1,"h3",[[0,[],0,"Understand BPS"]]],[1,"p",[[0,[],0,"First, architects should fully understand any building performance codes applicable to their projects. Armed with a complete understanding of these laws, architects should discuss with the owner the impact that any such laws may have. The proliferation of other green building standards, such as LEED certifications, likely encouraged architects and owners to engage in such conversations in recent years, so the topic should not be foreign to any project participants. Architects should, of course, document such conversations. It is important, however, for architects to understand that achieving a green building certification or strict compliance with current energy codes may not be enough to achieve compliance with BPS. Now more than ever, architects will need to help owners make informed decisions about the materials, equipment, and assemblies incorporated into their buildings based on their potential for delivering on current and future BPS compliance. "]]],[1,"p",[[0,[],0,"Architects should also discuss with owners the fact that a building\u2019s long-term energy usage depends on energy-consuming elements within the building. In this regard, architects and owners should discuss (and, ideally, agree upon) how the building will be designed, used, operated, and maintained to comply with these laws. For example, energy modeling is key to showing owners the impact the decisions they make today may have on future energy performance. This helps owners decide whether to invest more now or include the cost of future improvements in their building operations plan. "]]],[1,"h3",[[0,[],0,"Contractual Protections"]]],[1,"p",[[0,[],0,"Second, architects can consider contractual protections. For the last several years, the "],[0,[0],1,"AIA Documents Committee"],[0,[],0," has worked on the development and revision of Contract Documents that help address some of the unique issues and processes related to sustainable design and construction. None of these documents was developed specifically to address any jurisdictionally mandated energy performance requirements (or other such laws). Nonetheless, the current "],[0,[1],1,"AIA Contract Documents"],[0,[],0," can be used as a starting point in the development of contracts and related documents for projects that involve compliance with such laws."]]],[1,"p",[[0,[],0,"In addition to comprehensive and coordinated sets of agreements for use in all major project delivery models\u2014design-bid-build, design-build, CM as Constructor, and CM as advisor\u2014the AIA has also developed resources to assist architects (as well as other project participants) in adapting to the shifting landscape of sustainability requirements. These resources include sustainability exhibits that can be attached to standard owner\/architect, owner\/consultant, architect\/consultant, owner\/contractor, contractor\/subcontractor, owner\/CM, and related agreements. While these exhibits were not specifically developed to respond to the performance-based metrics of these new laws, they are valuable because they require the owner and architect to clearly define relevant sustainability requirements, set reasonable expectations based on agreed targets and goals, allow the parties to understand what the architect can and cannot do and the limitations of predictive energy modeling, and set out a detailed process through which all project participants understand their role in achieving BPS and will work to achieve the identified goals. The AIA also recently released a Sustainability Consultant Scope of Services document (C204\u2122-2020) for use when a consultant provides sustainability services, which is useful when an owner will engage a consultant with particular expertise needed to meet the requirements of the new local laws. The AIA also has an extensive Guide for Sustainable Projects (D503\u2122-2020) that discusses many issues related to meeting sustainable design and construction requirements, and the fair allocation of risk associated with the design and construction of these projects."]]],[1,"p",[[0,[],0,"While none of the foregoing documents specifically address any particular locality\u2019s BPS, they can all serve as a good starting point to develop comprehensive and coordinated agreements that address the requirements for design and construction to meet local laws. These documents will, of course, need to be edited to address the specific project. The exhibits, consulting scope of services, and guide are as follows:"]]],[3,"ul",[[[0,[2],1,"A141-2014 Exhibit C"],[0,[],0,", Design-Build Sustainable Projects Exhibit"]],[[0,[3],1,"New!"],[0,[],0," "],[0,[4],1,"C204-2020"],[0,[],0,", Sustainability Consultant\u2019s Scope of Services "]],[[0,[3],1,"Updated!"],[0,[],0," "],[0,[5],1,"D503\u20132020"],[0,[],0,", Guide for Sustainable Projects"]],[[0,[6],1,"E234-2019"],[0,[],0,", Sustainable Projects Exhibit, Construction Manager as Constructor Edition"]],[[0,[7],1,"E235\u20132019"],[0,[],0,", Sustainable Projects Exhibit, Construction Manager as Adviser Edition"]],[[0,[8],1,"E204-2017"],[0,[],0,", Sustainable Projects Exhibit (for use on Design-Bid-Build\/A201 projects)"]]]],[1,"p",[[0,[],0,"Summaries and free samples of these documents are available from the AIA website using the embedded links above."]]],[1,"p",[[0,[],0,"Architects should also review one of the current owner\/architect agreements, or one of the coordinated families of agreements, in conjunction with the applicable sustainable projects exhibit for that delivery model, and review the consulting scope of services and the D503 guide, to determine how the documents might work best to meet the various needs for the services to be provided."]]],[1,"h3",[[0,[],0,"Standard of Care"]]],[1,"p",[[0,[],0,"Third, architects should understand how the standard of care might apply to BPS. In jurisdictions with performance-based code or related building requirements, the architect and its consultants may be obligated to design to meet the applicable performance requirements in the code or related law or regulation, and the adequacy of their services will, therefore, be judged by the common law standard of care (commonly accepted negligence standard). While the architect and design team cannot guarantee or warrant that a building will meet the performance criteria (in large part because they cannot guarantee that the owner, contractor, building tenants, or others will construct, operate, or maintain the building and its systems in accord with the design criteria), they can\/should employ the tools and resources that a reasonably prudent architect or design professional would employ in the same or similar circumstances to create a design that will meet the applicable performance criteria. This is important because professional liability insurance generally responds to negligence claims, and most policies exclude claims arising out of contractually assumed liabilities such as warranties, guarantees, and enhanced performance standards. Most AIA owner\/architect agreements have an express statement of the negligence standard. For example, "],[0,[9],1,"B101\u2122-2017"],[0,[],0," provides:"]]],[1,"p",[[0,[10],1,"\t\t\t\tThe Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances. The Architect shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project."]]],[1,"p",[[0,[],0,"This formulation of the standard of care is likely acceptable to most professional liability insurance carriers, but it would always be prudent to confirm coverage with insurance professionals. The AIA\u2019s Sustainability exhibits also expressly disclaim warranties and guarantees. For example, "],[0,[8],1,"E204-2017"],[0,[],0," provides in part:"]]],[1,"p",[[0,[10,3],1,"\t\t\t\t\u00a7 6.1"],[0,[],1," The Owner, Contractor and Architect acknowledge that achieving the Sustainable Objective is dependent on many factors beyond the Contractor\u2019s and Architect\u2019s control, such as the Owner\u2019s use and operation of the Project; the work or services provided by the Owner\u2019s other contractors or consultants; or interpretation of credit requirements by a Certifying Authority. Accordingly, neither the Architect nor the Contractor warrant or guarantee that the Project will achieve the Sustainable Objective."]]],[1,"p",[[0,[],0,"While the question remains of whether or not designing to meet the local laws is a \u201cSustainable Objective\u201d under AIA documents (for example, if the sole or main purpose of the project is to upgrade the building to meet the new local law requirements), or rather falls under a more general obligation (such as to comply with existing code requirements when designing a new building), the concepts are likely generally applicable (as are several other issues addressed in the agreements and exhibits). Thus, AIA Contract Documents can provide a solid starting point for the development of agreements for the design and construction of projects subject to local law requirements. In developing these agreements, terms should be discussed and developed in conjunction with legal and insurance counsel."]]],[1,"p",[]],[1,"p",[[0,[],0,"------"]]],[1,"p",[[0,[10],1,"*AIA has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors."]]],[1,"p",[]],[1,"p",[]],[1,"p",[]]]}
An increasing number of jurisdictions throughout the US are implementing building performance standards (BPS). If a building fails to meet the BPS, architects should consider how to minimize the risk they face.
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