Be Certain That Subcontractors Are "On Board" with LEED Requirements

LEED (Leadership in Energy and Environmental Design) buildings are becoming more prevalent every day. LEED is a green building program that is recognized around the world and is monitored by the U. S. Green Building Council.   An October 1, 2012 article in the noted, "Now there are approximately 14,044 LEED-certified commercial projects, covering more than 2 billion square feet, in 140 countries, with another 34,601 projects in the pipeline."   The LEED concept is to identify and implement solutions that encompass green building design, construction, operation and maintenance that are better for the environment than traditionally constructed projects and that provide cost and operating efficiencies over the useful lifespan of the completed project.

To achieve a LEED certification, commercial construction projects must satisfy all LEED requirements and earn at least 40 out of the 110 points on a LEED rating system scale. The certification range includes certified, silver, gold or platinum designations, depending on the total points achieved. Most projects start with the desired level of certification as a defined objective. For example, gold certification will require a minimum of 75 points on the 110 point scale.

          Points can be achieved through a myriad of means, many of which are routine construction tasks, from handling of debris and waste on the construction site to the type of paint used for the interior. When an owner or developer seeks to complete a project with a LEED certification goal, the contract with the General Contractor will typically contain very specific provisions that require the General Contractor to comply with the LEED-related criteria. However, without proper consideration to the role of the various subcontractors, a project may not qualify for points that it would otherwise easily achieve. How can the General Contractor help the subcontractors perform in a manner that meets the LEED requirements?

In his commentary in the Engineering News Record, Four Tips for Managing Subcontractor Risks on Sustainable ProjectsLogan Hollobaugh, an attorney with Ogletree Deakins' Chicago office, suggests four steps to take.

          1. All contracts with subcontractors should contain strong flow-down provisions that are specific to the LEED requirements for that subcontractor's area of performance. The subcontractor should acknowledge that the project is seeking a LEED certification, and the subcontract should contain a provisions by which the subcontractor undertakes in favor of the General Contractor all of the LEED obligations that the General Contractor's contract with the Owner requires of it as to that subcontractors area of performance.

2. All subcontractors should be pre-qualified in LEED project experience with significantly more in-depth questions and background experience checks and requirements as a part of the hiring process.

3. LEED projects are document-intensive, especially in terms of what the Owner has to submit for review in order to be awarded the points to achieve the desired certification. A typical LEED project will involve a schedule of tasks and responsibilities geared toward each credit that the Owner is seeking for the project, and where applicable, this schedule should be incorporated into the subcontractor's agreement with the General Contractor.

4. LEED is an educational process in many ways, and a savvy General Contractor will hold on-site training for subcontractors. This is an effective means by which to communicate to subcontractors precisely what they are supposed to do on the particular project in relation to the LEED requirements and, equally important, what they are not supposed to do or what they are to avoid doing on the project.

Spotts Fain publications are provided as an educational service and are not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.