LEED buildings could put firms at more risk

Encon Group, providers of professional liability insurance, is concerned that consulting engineers are careful when they become involved in designing buildings that are intended for
environmental certification. One of the most prominent certification programs is LEED (Leadership in Energy and Environmental Design).
In an article in the company’s July 2006 Loss Control Bulletin, Derek Holloway, senior vice-president, architects and engineers, writes: “The issue of performance raises an interesting question: who is responsible for the project attaining LEED certification? It would not be reasonable to make the design professional accountable for certification if the client utilizes the traditional tendering approach for construction, awarding the project to the low bidder…”
He continues, “From a liability standpoint, design professionals…. must not take the responsibility for ensuring that the project will be LEED certified. They can only agree to produce a design which will result in certification if the project is constructed in accordance with the contract documents and the specified materials are available for the project. …
The liability exposure associated with this responsibility and any failure to obtain all relevant documents required for certification would, however, be much greater, as the project owner may have used the LEED certification for marketing purposes and/or may argue that the lack of certification will diminish the resale value of the property. Design professionals should incorporate appropriate language in their agreements to set out the level of responsibility and liability they are prepared to assume.”