Construction Trend Becomes Mainstream: Green/Sustainable Buildings
Toben, Rodney M., Dispute Resolution Journal
Anticipating and preparing for disputes arising out of green construction projects.
During the past decade, the construction industry has seen a new trend take hold and even become mainstream in some places -"Green" or "Sustain able Construction." The use of sustainable building features is becoming standard practice as federal, state and local jurisdictions are modernizing building codes and ordinances to require buildings to conserve energy and water and improve air quality. In the future, a significant amount of public, commercial and residential construction projects will incorporate some green elements to one degree or another.
Using sustainable construction does not mean that a project is designed and built in an entirely new way. Traditional design and construction practices continue to be used on green projects. But what is different is that construction design professionals try to meet the owners' desires for a building that improves the health and comfort of occupants, conserves natural resources (for example, using a renewable re source in place of one that is already depleted), and reduces harmful emissions into the environment.
Generally, sustainable construction is more expensive and necessitates an integrated design approach.
Thus, colla bora tion is es - sential among members of the project team. If the owner wants to be able to tell the world that the building was constructed using environmentally responsible design and construction methods, or obtain "Green" certification by an independent certifying body, it will be necessary for the project manager to track and document all sustainable design features and products used on the project, since detailed records must be submitted to the certifying organization.
One of these organizations, the United States Green Building Council's (USGBC) Leadership in Energy and Environmental Design (LEED), requires a project to earn credits in several green categories in order to obtain LEED certification. However, if on-the-job records are not properly maintained, it may be difficult to obtain certain certification credits after project completion, particularly those associated with waste management, construction management, and materials.
At the bidding stage of a green project, the design professionals and the general contractor should thoroughly question the owner about completed project performance expectations in order that the project bid and budget reflect the feasibility of completing the project and obtaining green certification or meeting another environmental standard.
The bidders may wish to suggest that the owner retain a "Green" consultant at inception to advise on green materials and construction and establish a system for documenting green elements used in the project.
It might be very helpful to have a consultant around if the owner requests a change that would have an adverse impact on sustainable elements of the project. If the owner decides to proceed with the change, it may be advisable to amend contracts to reallocate responsibility for the green elements, if changed.
It is possible for a high-performing building to fail to achieve the desired level of certification or a particular green standard (and therefore fail to meet the owner's expectations) for reasons that do not affect the building's performance. For example, failure could be related to improper documenting or implementing some aspect of the project.
Disputes can arise on green construction just as easily as on traditional construction. But be - cause these projects have additional criteria that must be met, it is critical that the entire project team understand the owner's expectations and priorities for the project.
Though it may not be intuitive, they also need to understand what could go wrong. This information can help when it is necessary to decide which contractors, subcontractors and suppliers to use, how to allocate risk and responsibility among them, as well as other issues. …