For the Client: Successfully Incorporating Sustainability Goals

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June 2011

COMMUNITIES: PRIVATE PRACTICE
For the Client: Successfully Incorporating Sustainability Goals

BY NAHOM A. GEBRE, ESQ., P.E.

NAHOM A. GEBRE, ESQ., P.E.In the April "For the Client" article, we addressed the push to sustainability that clients are increasingly demanding for their projects. This article will cover the steps clients should take to incorporate sustainable features into their projects. Clients embarking on a project that is intended to incorporate sustainable design elements should take time to communicate those desires to all the participants.

The client should develop a document that addresses any third-party sustainability certification requirements or any incentives that are being targeted and share the document with all project participants. It is in the client's best interest to translate these sustainability aspirations into reasonable contract requirements with roles and responsibilities clearly outlined. Clients should draft a clear, well-written request for proposals that requires firms to specifically address how they intend to deliver the necessary design services to achieve the client's goal. When drafting a request for proposal, some of the key items to include are:

  • Project objectives, detailing the sustainability characteristics that should be part of the finished project as well as the actual definable and realistic goals to be achieved;
  • Scope of services, detailing what is included and what is not included;
  • A request for the engineer's qualifications and experience, including subconsultants. The inclusion of subconsultants is important because most sustainability-related projects require a multidisciplinary approach; and
  • A request for a written approach to providing the necessary design services required to meet the project sustainability features and other project objectives.

Clients, working with the engineers, should develop the scope of services and recognize that sustainable projects require an increased level of service, risk, and compensation. For example, design firms may have to review new products and systems for incorporation into the project. Design firms have a responsibility to document a rational selection process based on technical documentation as opposed to promotional material. The design firm should also research the reputation and capacity of the manufacturers and inform their clients of the risks discovered. Clients should then give their informed consent based on the information presented to them. Ultimately, it is the client who will own and operate the completed facility, and their perspective as the end user of the facility should not be forgotten.

Clients with sustainability projects have increased expectations related to certification, energy or water use, or other attributes of sustainability. Contractual obligations relating to these aspects should recognize that engineers are exercising their professional judgment. When engineers make projections on levels of performance or fixed reductions of operating costs based off their design model, these projections are based on a predictive model intended to replicate—to the extent possible—actual facility performance. A building's actual performance could diverge significantly from the predictive model due to unanticipated variations in the end user's behavior, as well as the fact that facilities are made up of complex systems that are difficult to model accurately. As such, the engineer's contractual standard of performance should be tied to his or her profession's standard of care, which is typically defined as an obligation to practice with the same skill and care used by members of the profession practicing under similar circumstances at the same time and in the same locality.

The engineer's standard of performance should avoid express warranties or guarantees and, ideally, limit the liability of the design firm for consequential damages related to certification, energy or water use, or other attributes of green design that are generally not within the engineer's control. For a successful project outcome, it is important that close attention be paid both to the scope of services and the terms of the professional services agreement.

For any sustainability project to meet its predefined goals and objectives, proper construction oversight is essential. The constructor has to be cognizant of the special requirements that are in place due to the sustainability goals of the project. Ideally, it would be prudent to get meaningful constructor feedback about the availability of new products and systems that are specified, as well as a meaningful constructability review during the design phase. The constructor must be made aware that any proposed substitutions will have to be reviewed carefully because it may affect whether the project achieves the proposed sustainability-related goals.

Clients may also require the environmental impact caused by construction activities to be minimized by requiring the constructor to take preventative measures to avoid waste and inefficiency. All of these require the client to develop a clear construction contract that outlines the constructor's obligations. It is also important that the engineer's role during the construction phase be clearly outlined in the construction contract so that it matches the engineer's responsibilities in the professional services agreement.

In summary, proper planning and early involvement of the design team is essential for the successful completion of any project that has sustainability-related goals.
 
Nahom A. Gebre, Esq., P.E., is a risk management attorney for Victor O. Schinnerer & Co. Inc. CNA/Schinnerer's professional liability insurance program has been commended by NSPE since 1957.