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Construction Law Authority / Articles posted by Mark J. Stempler

Keeping ‘Green’ Contracts Clear

The green building industry is arguably more popular than ever. The number of certified green buildings grows every day across all sectors of the building industry. Unfortunately, the contracts for sustainable projects are sometimes behind the times. Standard construction contracts are often not tailored to address the numerous issues and nuances that may come up on sustainable projects. This potentially puts all contracting parties at greater risk of uncertainty if disputes arise on the job site. Preparation on the front end of a green building is usually the best way to alleviate problems later on, and it starts with the contract. This is true whether the project is one for new construction or for renovations or retro-fitting. First, the contract should be as clear and specific as possible about what the green goal is. Simply using terms like "green building," "sustainable building" or "high-performing building" are not enough, because it is...

AIA Releases Top Ten Green Buildings of 2014

Solar roof panels and low-flow toilets are so last season.  Now there's more graywater recycling, net-zero or net-positive energy systems, ground source heat pump systems, and variable-refrigerant flow heating and cooling systems.  These features are featured in the American Institute of Architects' (AIA) Committee on the Environment's annual Top Ten Awards. The awards celebrate projects that are innovative and integrate built and natural systems and enhance both the design quality and environmental performance of the built environment.  This year's winners range from renovated historic buildings to educational facilities and even includes a very cool "sustainability treehouse" in West Virginia (here's the photo). Check out the awardees at http://www.aiatopten.org/....

Green Construction Contract Concerns

Many contracts used in green building projects are not always ideal for green building projects.  Often, contractors, design professionals, or owners will use their old standard construction contracts.  But those forms might not take into account some of the nuances or issues that can arise on a sustainable project. For example, green building contracts should strive to be more specific about what the green goal is.  Terms like "green building", "sustainable building" or "high-performing building" lack the specificity of what the goal is.  Further, it is not enough for the owner to say it wants LEED platinum rating, or LEED certified, or Green Globe?  There is a difference.  Or, maybe the goal is to save money on electricity, or to reduce the amount of water consumed.  Those should be specifically identified, so if the goal is not achieved, there will not be confusion as to what the goal was.  Confusion often...

FTC’s Green Guides Help Guide Owners, Contractors and Design Professionals

This post originally appeared in "The Green Building Law Blog" Being green is not always straightforward.  There are many products on the market, related and non-related to building, that make claims about their environmental benefits and impacts.  There are many service providers that make similar claims.  But not all products and services live up to their billing.  Companies marketing themselves or their products as environmentally friendly will have to better qualify those statements, in light of Federal Trade Commission's Green Guides. The Green Guides have been around since 1992.  The latest version was updated in 2012.  They "outline general principles that apply to all environmental marketing claims and provide guidance regarding many specific environmental benefit claims."  The purpose is to cut down on deceptive practices regarding green marketing.  The Green Guides are not law and are not independently enforceable.  But, the FTC can take action if someone or some entity makes an environmental...

Consequential Damages in Green Construction Lawsuits

By Mark J. Stempler

A primary concern in any lawsuit involving green construction is damages.  One party will claim it has been harmed and will typically demand money or specific performance.   There are different types of damages that can be sought including actual damages, future damages, punitive damages, and consequential damages.  That last category raises some unique issues in a green building lawsuit.
 
Consequential damages are typically defined in Florida as those that do not necessarily, but may directly or indirectly, result from the injury for which compensation is sought.  Consequential damages can include items like loss of use, lost profits, loss of rental income, etc.  These are all issues in the green building context too, but determining the value of these damages may be more difficult to define.  For example, suppose an owner is seeking green building certification for an apartment complex.  If the contractor or other professional responsible for attaining such certification does not get the certification, the owner may be entitled to consequential damages for lost rent for the units.  But, the owner could encounter difficulties in proving the amount of damages.  The owner likely believes that green buildings command higher rents than non-green buildings, but that is not guaranteed.  The burden will be on the owner to prove what that added value would have been.  Or, if the failure to achieve the green certification cause the owner to miss related tax credits or grants, the owner may have a claim for those values.  It will, of course, depend on what representations were made in the contract.  In fact, the loss of tax credits was the issue in one of the first reported green construction lawsuits.  In that case, which eventually settled, the contract contained a waiver of consequential damages.  Another potential scenario is when the project does not deliver the energy cost savings promised to the owner, or promised by an owner to a tenant for example.  Those lost savings may also provide a basis for a consequential damages claim.  These examples illustrate the need for clear and specific language in a construction contract regarding each parties’ representations, expectations and responsibilities.

LEED v4 Passes

by Mark J. Stempler The newest version of the popular LEED Green Rating System is affirmed.  The U.S. Green Building Council (USGBC) announcced that its membership voted to adopt LEED v4 by an overwhelming 86%.  This version of LEED has been in the works for a few years.  Ultimatly, it withstood controversy and was refined through several public comment periods. Changes in LEED v4 from the current version (adopted in 2009) include: *  A new credit category - Location and Transportation; *  A new credit in the Sustainable Sites category - Rainwater Management; and *  New prerequisites in the Water Efficiency category; and *  New requirements for the use of LEED AP's for specific credits. There are several other additions and changes in LEED v4 which will affect numerous types of buildings. For the complete list, check out http://new.usgbc.org/v4. The full LEED v4 program, along with reference guides, will be unveiled at this year's Greenbuild conference in Philadelphia...

Court Finds Late Bid Was Not Late

By: Mark J. Stempler

The case:  INSIGHT SYSTEMS CORP., and CENTERSCOPE TECHNOLOGIES, INC. v. THE UNITED STATES

The court: The United States Court of Federal Claims

 

A computer glitch forced disqualified proposers to challenge a U.S. government agency.  Here is an abridged version of what happened.  The United States Agency for International Development (USAID) advertised a Request for Quotations (RFQ).  Eventually during the process, proposers were allowed to submit their revised final quotes either in hard copy form, or electronically via email.  If the proposer submitted the quote electronically, it was its proposer’s responsibility to send in the appropriate information, and to do so timely to the people designated to receive it. 

 

The two Plaintiffs in this case submitted quotations in response, and did so electronically and in their opinion, before the deadline.  The way the system was set up, emails from outside sources directed to the specified USAID email addresses pass from the outside mail server through a sequence of three (3) agency-controlled computer servers, before they are ultimately delivered to the recipients.  To make a long story short, the emails were received by the first USAID server, but due to technical error, were not passed on to the ultimate recipients until after the submittal deadline.  USAID notified the proposers that their proposals would not be considered because they were received after the deadline.  Arguing that late is late, the USAID felt that it did not matter whether the perceived lateness was due to technological malfunctions with its own computer system.