Evolutionary Performance Models & Standards: Sustainability and Beyond
Finally, design and construction projects are no longer necessarily “business as usual” with traditional, quantifiable, and verifiable objectives. Instead, secondary and more qualitative performance and utility standards are increasingly driving project designs. When they do, varying issues of product innovation, innovative systems, and long-term performance become relevant.
Traditionally, design professionals’ work product has been evaluated on no more than five largely quantifiable criteria:
- Technical accuracy and completeness.
- Cost of construction.
- Function for intended purpose.
Those limited criteria have now been joined, and even supplanted, by far more ethereal objectives most often tied to some less immediate and tangible performance standard. Such varied standards may include redevelopment, historic preservation, job force training, or functional adaptability. However, by far the most significant and prevalent performance standard which is dramatically affecting and influencing architects has to do with green or sustainable design.
The demand for sustainable, green design projects is unmistakable. Since 2003, the General Services Administration of the United States Government has required all of its construction projects to be certified through the Leadership in Energy and Environmental Design (“LEED”) Green Building Rating System of the U.S. Green Building Council. Similarly, with a benchmark of 2007, California Executive Order S-20-04 requires all significant State buildings to be LEED-certified and retrofitted for sustainable performance, while at the same time reducing overall energy consumption by State operations by 20% within eight years. As of July 2008, Engineering News Record reported that nearly 70 jurisdictions in 28 States had enacted some form of “green building” requirement.  Those figures continue to grow.
In response to these market forces, as well as its own collective social conscience by both implication and express obligations, the AIA has now made “environmentally responsible design” a primary consideration and focal point for all of its members and, by extension, the design community as a whole. During the Schematic Design Phase, the standard terms of the AIA B101 now require:
The Architect shall present its preliminary evaluation to the Owner and shall discuss with the Owner alternative approaches to design and construction of the Project, including the feasibility of incorporating environmentally responsible design approaches. 
By this provision, the architect becomes, in equal parts, a sustainability conscience and resource to its client. However, it is very clear that even the AIA is uncomfortable with the extent and implications of this obligation since “extensive environmentally responsible design” and “LEED Certification” are later expressly characterized as additional services not included in the Agreement.
The National Society of Professional Engineers (“NSPE”) has taken a even more proactive approach which moves the sustainability issue beyond mere discussion and closer to action. In the “Professional Obligations” section of NSPE’s current Code of Ethics, NSPE states:
Engineers are encouraged to adhere to the principles of sustainable development in order to protect the environment for future generations. 
NSPE then takes the concept even further beyond the AIA by defining “sustainable development” as:
. . . the challenge of meeting human needs for natural resources, industrial products, energy, food, transportation, shelter, and effective waste management while conserving and protecting the environmental quality and the natural resource base essential for future development. 
As a result, it is now difficult to imagine any architect who would not be compelled to at least explore the sustainable requirements for a project on both the client interest level and the governmental requirement level. Based on the admonitions of the architect societies, it is easy to argue that this now is the new minimum standard of care.
The great challenge is exactly what professional obligation follows the exploratory discussion. The threshold question is easy and focuses on whether or not some element of sustainable design or project performance is required by regulation or statute. If so, the sustainable elements of the project design almost rise to the level of the Uniform Building Code, but with very important limitations and caveats. Some regulatory requirements can be accomplished and satisfied by design (i.e., sustainable building products, recycled content, and hazardous materials). Others are often a function of project maintenance and operation (e.g., energy consumption). Architects should appropriately limit their obligations to a standard based on reasonable expectations of product performance and project maintenance and operation, with an appropriate disclaimer of any performance guarantee.
Where a sustainable design and project is only governmentally incentivized or encouraged and is therefore not required, or is only a product of an owner’s desire or conscience, the design professional’s obligations are much less clear. Neither AIA nor NSPE standards presents a clear standard which can be definitively achieved. Similarly, individual and even corporate perspectives can and do vary widely. The lack of any reasonable or recognizable boundary for the opportunities and obligations of a “green” project is the single greatest obstacle to the defense of a design claim based on “sustainability” issues. Even judges’ and juries’ interpretations and applications of “green” standards of care and design obligations will likely vary widely as a function of personal taste and perspective.
For this reason, architects will be best served by avoiding the broad use of the generic terms “green”, “sustainable”, “environmentally responsible”, and “sustainable development” in their own Agreements, documentation, and work product. Instead, wherever possible, the sustainability references and discussions should be reduced to more definitive concepts and clearly-expressed goals, expectations, and commitments. Similarly, attorneys and insurance companies defending architect “green” claims should seek to move beyond the platitudes and buzz terms to find a more concrete level of roles, decisions, and responsibilities with respect to sustainability issues as a means of creating definition to and, hopefully, boundaries to the green design-related standard of care and responsibility. Such defining limitations and warnings may sometimes be found in scopes of work, submittals, Meeting Minutes, correspondence, project management plans, product analyses and recommendations, value engineering proposals, manufacturer information and product data sheets, and more.
However, even this approach may lead to the Pandora’s Box most feared by architect insurance carriers and public commentators. That is the fear that architect participation in and commitment to the “green” process will be transformed into express or implied guarantees or warrantees of project performance or environmental certification. Both issues may be outside of traditional understanding of the standard of care and architect errors and omissions insurance coverage. Therefore, they present a concern for conflict between architects and their carriers, as well as significant uncovered liability risk. In fact, claims based on failed or substandard environmental certifications or projects failing to meet performance expectations (especially with respect to energy usage) represent the majority of significant claims to date against architects with respect to “green” design issues. 
Performance Standards, Design Limitations, & Innovation
As a result, the introduction of the green or sustainable design imperative, as articulated by both design professional organizations and the many regulatory programs promoting or requiring “green” projects, presents a complex and non-traditional project delivery challenge for the architect on at least three levels:
- Performance Standards. Instead of the traditional five objectives referenced above, many “sustainable” projects introduce competing standards and criteria which may actually adversely impact some of the traditional standards and how the building ultimately comes together and performs. Either the failure to meet such standards, or the collateral impacts of doing so, have been among the most common “green” design claims. The unforeseen collateral impacts often come as an unwelcome surprise to project owners who respond with claims against the design team as a solution to their dissatisfaction. One such common surprise is the basic cost of construction. Even though there may be long-term cost savings, higher initial costs are a frequent source of complaints. However, it need not and should not be a surprise in that most industry reports indicate that a “green” project typically costs 20% more for original construction and equipment. Even where the “performance” standard or rating is achieved, many owners have been dissatisfied with other operational issues in the project or its aesthetics, and have pursued their design team as a result. Even when the only objective is a certification such as LEED, ultimately attaining that goal may rest on issues in the future and outside of the architect’s control.
- Design Limitations. Environmentally-sensitive designs and projects often limit the resources which can be used on the project. If so, there is typically a tradeoff of performance, cost, or implementation.
- New & Innovative Products, Systems, & Applications. Often, a sustainable design depends on newly-created products, systems, or applications which lack a proven track record for success. As a result, the goals may not be achieved and there may actually be adverse side effects. To satisfy the standard of care, the architect must manage each of these issues through client communication and education, documentation, research, and performance. For these purposes, the architect standard of care becomes as much or more about process, communication, and definition as it does about the actual work product delivered.
Regulation, Communication, Contracts, & Products
The successful management of a sustainable design project and the related standard of care is really a process to manage the three challenges referenced above. The four primary sequential steps to facilitate this process may be as follows:
- Regulatory Incentives & Obligations. As indicated above, sustainable/green
project design performance necessarily begins with an understanding of the
governmental requirements and opportunities. Unfortunately, this is not a
simple process since the range of potential issues is constantly shifting
and expanding. The process is not as simple as merely checking with the local
building official. It may also extend to review of public utility issues,
potential tax credits, land use and zoning enhancements and limitations,
and more. It may involve local, State, and Federal issues. As a result, this
process should be documented both internally and for the benefit of the client,
with an express disclaimer of any further duties of related investigation.
Oftentimes, additional services provisions can be a helpful tool in limiting
the obligatory extent of such an investigation.
- Communication & Education. With the governmental and regulatory framework in place, the next and most important step is to reach a mutual understanding with the client as to the client’s desires, objectives, and tolerances. Ultimately, they must be realistic and achievable. This often comes down to a matter of examination, education, testing of boundaries, and ultimately drawing lines. Many clients want a sustainable or environmentally-sensitive design without really understanding the implications. The client expectations may not be fully developed, realistic, or even feasible. In addition, electing to make a project sustainable, environmentally-sensitive, or LEED-certified will have impacts which the client needs to understand and accept as its choice and risk and not that of the architect. For that reason, the impacts of the sustainable election should be clearly documented and, ideally, in the contract itself.
At the outset, this paper extolled the “wisdom” of learning from the mistakes of others. On that basis, some of the green issues which have been the focal point of prior design-based claims which should be considered as a part of the education and reality process include the following: 
- LEED or similar certification is uncertain, time-consuming, and expensive.
- Green or sustainable projects do not have long-standing performance records, if any. Actual performance may not meet expectations.
- Sustainable products may extend construction schedules.
- Green or sustainability standards and available products should be expected to change over time.
- Sustainable construction requires participation by others, including contractors.
- Sustainable projects require sustainable actions in operation and maintenance which are post-construction and, therefore, not the design team’s responsibility.
- Contractual & Project Documentation of Limitations & Responsibilities. All of the foregoing education and establishment of realistic expectations and goals is virtually worthless if not appropriately documented. Ideally, it will be predicted and provided for in the contract. Such a provision might provide:
Client has elected to pursue this project applying principles of sustainable design consistent with the standards published by <insert name of entity>. Client has established this as a primary project objective and recognizes that in doing so, it has limited the available design and product options. These limitations may impact the overall project cost, schedule, and performance. Client has accepted these potential impacts in recognition of the importance it has placed on the values of sustainable design.
Where the discretionary limitations cannot be fully anticipated in advance of the project (e.g., value engineering), they must be dealt with as the project proceeds. Here, the objectives are to essentially accomplish the ends of the provision set forth above. That is:
- Affirmative identification of the bases of selection (i.e., cost, schedule, appearance, etc.) that should be disclosed in writing.
- Affirmation that these bases have been given priority over other considerations, including possible variations in performance, cost, schedule, appearance, and operation.
- Product Selection & Application & Certification Processing. Where the goal is not just an “environmentally sensitive design”, but an actual certification through a program such as LEED, the architect should avoid any guarantee or promise that that goal will be achieved since such ratings often depend on factors far outside of the architect’s control. Such a provision might provide:
While Client has identified a desire to secure a LEED rating of Silver or better for the Project and Consultant has committed to work in good faith and consistent with professional standards towards that goal, Consultant cannot and does not control all elements necessary for that rating (e.g., maintenance, operation, system performance) and therefore cannot guarantee such a rating will be achieved.
If the proposed design includes a new and innovative “sustainable” product, the architect will have two concerns for the standard of care. The first is to apply some of the principles discussed above with respect to innovative products. The second will be to make sure that there is no guarantee as to the actual performance of the product. That obligation should appropriately remain with the manufacturer or proponent of the product, system, or application.
Finally, even though there are now nearly 50,000 LEED-accredited professionals in the United States, LEED accreditation does not necessarily equate to a professional capacity to create a sustainable, environmentally-sensitive project for all purposes. As stated above, the threshold issue for any architect standard of care focuses on education, training and skill. Specifically, the architect must generally “have that degree of learning and skill ordinarily possessed by reputable [professionals], practicing in the same or similar locality and under similar circumstances”. In the field of sustainable design, the requisite learning and skill will always be a moving and advancing target. As a result, the architect should conduct a realistic assessment of its capabilities and seek outside assistance where appropriate.