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July 1, 2019

Green Design – Six Tips for Making Sure You’re Covered

Green Design – Six Tips for Making Sure You’re Covered

Green design is significantly impacting the work of engineering firms, with clients in both the public and private sectors stressing environmentally conscious and eco-friendly approaches to projects. 

Here are six tips for making sure your firm’s contracts protect you from the unique risks and liabilities of green design.

  1. Recognize that your goal is for the project to achieve LEED or other green certification, but stress that you cannot assure, warrant or guarantee such certification. Getting certified will be subject to the processes of outside organizations such as the USGBC, as well as the performance of the contractor, the client and other parties to the project.
  2. State in your client contract that you cannot warrant or guarantee that the project will achieve specific benefits, such as a given level of energy efficiency, lowered life-cycle and maintenance costs, or any credits, incentives or grants offered by municipalities, government organizations or other public or private groups.
  3. Establish a reasonable standard of care by noting in your contract that you will perform your services in a manner consistent with the degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances at the same time and in a similar locale. Be careful to avoid touting yourself as a "green expert" in any of your company documents, including your contract and marketing materials.
  4. Acknowledge in your contract that in your quest to deliver a project that qualifies for LEED or other certification requested by the client, you may need to specify relatively new or untested products, technologies, materials, and systems. Be clear that these state-of-the-art resources may be of higher cost than traditional materials. Also, note that the client assumes all risk for inadequate performance of new or inadequately tested materials they have recommended or approved.
  5. State in your client contract that you are not responsible for project delays caused by others (such as reviews of the project by certification agencies), and that your schedule will be adjusted accordingly if such project delays occur.
  6. Refer to the building owner's and occupants' responsibility for providing regularly scheduled maintenance of the facility and its mechanical systems. Identify which party is responsible for which element of the building and include the manufacturer’s recommended maintenance schedule as an addendum to your contract with the client.

Be sure your attorney checks the laws in your state or province regarding contract provisions that transfer liabilities to your client or limit their ability to seek redress from you.

You should also review the contractor's contract with the client, as well as any agreements between the client and any LEED consultant or other certification body.  Plan to address any concerns you have regarding contractual liabilities that increase your exposure.

For more information, contact the Professional Liability Agents Network.


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