LEED version 3 - Certification/Decertification

LEED version 3 - Certification/Decertification

By George Nicholos

When the U.S. Green Building Council (USGBC) recently rolled out version 3 of the Leadership and Environmental Design (LEED) green building rating system in July of 2009, the question of whether a building's LEED certification could be taken away or the building decertified quickly became a hotly debated issue. The issue came to the forefront in a high profile challenge to the LEED rating of a mid-west school project and was further fueled by new provisions in LEED 2009 which reserved the USGBC's ability to revoke certification of a project that fails to meet the program's MPR's or Minimum Program Requirements. One such MPR included a new requirement regarding mandatory information sharing about the project's energy and water usage for five years after certification. What was missing from USGBC was a clarification whether a threat of decertification was at the initial rating approval/award stage or whether the threat of decertification extended through the five year reporting stage.

Thankfully USGBC issued LEED 2009 MPR Supplement Guidance document version 1.0 in November 2009 which helps clarify the decertification issue. The supplemental guidance document states that if it becomes known that a LEED project is or was in violation of an MPR, certification may be revoked, or the certification process may be halted and that these situations will be handled on a case by case basis. The supplemental guide also states that the utilities consumption reporting MPR was not intended to penalize project teams with buildings that do not perform as well as intended or to create insurmountable technical or legal barriers to registering a LEED project.

USGBC further clarified its intent by stating that the intent for the five year reporting requirement was to improve future version of LEED rather than to strip certification from prior projects. However, building owners, project developers, builders, and designers should take great care with the express and implied promises made in their projects as the question and threat of decertification remains unchanged in LEED ver. 3 and presently only resides within the language of a supplemental USGBC opinion statement. Great care should also be taken to correctly report all information in a LEED certification request as it has and remains USGBC's policy to go back and review certification in instances where a petitioner either lied or unintentionally provided inaccurate information thereby misrepresenting the project.

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George Nicholos is an attorney and architect with Vandeventer Black and concentrates his law practice in construction, architecture and public contracts.

He advises clients on a variety of construction and government based matters including FOIA requests, complaint filings, building code compliance reviews and protocols, and building forensic issues. He is experienced in the analysis of construction and materials issues, accessibility issues, building code compliance, negotiations, billing disputes, contracts, claims avoidance/liability shielding and design/construction defect issues on behalf of builders, developers, architects, engineers and property owners. He is also skilled in preparing condition assessments for evaluation and remediation of both commercial and residential properties.

George's 21 years of experience as an architect includes a full range of traditional architectural professional services including project management, fee preparation, fee negotiation, field data collection, consultant engineer direction and coordination, project design, construction estimating, preparation of construction documents, specification writing, shop drawing review and construction administration for both commercial and residential project types. George's experience as a forensic architect includes the analysis of an extensive range of building forensic issues including building/material defects, building component failure, moisture intrusion, building code violations, roof failures and settlement damage. 

George received a Bachelor of Environmental Design in Architecture from North Carolina State University, a Master of Architecture from Georgia Institute of Technology, and a J.D. from Regent University. He clerked with the Northrop Grumman Newport News Ship Building Law Department. George is licensed to practice both law and architecture in Virginia. He is also certified with the National Council Architectural Registration Board (NCARB) and is a member of the American Institute of Architects.

Before joining Vandeventer Black, George worked as a Forensic Architect with HBA Architecture & Interior Design.