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A recent lawsuit filed in California over the proper documentation necessary for LEED certification (discussed in detail at the Green Building Law Update) emphasizes the fact that, no matter how detailed the LEED certification process seems to be, a mere reference to that process or a certain level of LEED certification is far from sufficient to assure a smooth project.
While I don’t practice in California and don’t have any idea how the lawsuit will turn out, the fact that there is litigation over even the basics of LEED like documentation shows the clear necessity to make sure that your specifications and contract documents are specific and clear from the beginning. Owners, General Contractors and Subcontractors need to remember this fact at all times and particularly in situations where, like in the instance of LEED, the “specification” seems to be set out by others.
Because the LEED certification process allows for multiple paths to a certain credential, merely stating that the building must meet a certain LEED standard does not state how to achieve that standard. Merely stating (as they seemed to in the California situation described above) that someone must turn over the documentation necessary to pursue certification is not enough. The specification has to state exactly what documentation will be required. In short, while it is tempting to take a shortcut and just refer to the LEED certification guidelines, such a shortcut can lead to problems later.
I understand that the bidding and contract negotiation process can be both a busy and at times rote process. However, you need to remember that “green” is not a specification and the USGBC is not in the business of writing construction specifications and contracts. Every detail counts. For this reason, a thorough review of your construction contract before beginning work with the assistance of an experienced construction attorney (whether that contract contains a LEED provision or not) can save quite a few headaches down the road.
As always, I welcome your comments. Please subscribe to keep up with this and other Construction Law Musings.
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