Should You Guaranty Performance on a Green Project? (Law note)

guarantee sealBy now, I hope you know me well enough to know that I’d never, ever say you should make a guaranty of performance, period, let alone guaranty the green performance for a new building.  However, sometimes caution has to be thrown to the wind to get the job– at least in the case of a recent GSA design-build project in Seattle.

There, the design-build team agreed that the GSA could withhold 0.5% of the original contract amount, or $330,000, pending the achievement of energy goals.  As writer Suzanne H. Harness, J.D., AIA, noted recently:

The GSA’s approach is diametrically opposed to the recommendations of the American Institute of Architects, which advises both architects and contractors not to guarantee or warrant the achievement of a sustainability goal.  The AIA’s 2011 Sustainability Guide explains the obvious:  contractors and architects can design and construct a building, but the owner operates it, and the owner’s actions are beyond the control of the design and construction team. If the owner operates the building differently from the assumptions used during design, performance goals will likely not be met, even if the building is perfectly constructed. [Emphasis added].

Ms. Harness also correctly noted that professional liability insurance would not cover such a guarantee of performance.  So beware to the design team who takes such a project on: they can be held contractually liable, but there will not be insurance to cushion the fall out from any lawsuit.

Just DON’T do it!



Famous Monuments Montage– a very interesting graphic!

Recently I discovered this great montage to the famous monuments of the world, courtesy of the folks at the Construction Management Resources website.  As the pictures show, great architecture and engineering has been part of civilized society forever.  I’m not quite sure why the Grand Canyon is included here, since it is a natural, not a man-made, monument, but even so, this is a great graphic.  Check it out!

famous world monuments

Green Construction with Governor Perdue (Tue Tip)

NC Green Building Triangle Chapter LogoAct now to get early bird tickets to the USGBC NC Triangle Chapter’s spring Luncheon, featuring NC Governor Bev Perdue and others on the topic of the Green Business Fund, which was created to “make environmental innovation investments in alternative fuels, green construction, and other clean energy technologies – positioning North Carolina to become a national leader in environmental technology and in high-wage green collar jobs.”

Be sure and arrive at early so you can enjoy the exhibit hall featuring the region’s top green builders and suppliers and network with other committed professionals. 

When:  Thursday, March 24th

Time:  11:00 am to 2:00 pm

Where: Radisson Hotel RTP, 150 Park Drive, Durham NC 27709

How:  Register here by Friday, May 18th for early bird pricing.

Members of the Triangle Chapter – $35 ($45 after May 18)
Non-Members – $45 (55 after May 18)
Students – $25 ($35 after May 18)

Are you planning on attending?  Let me know and we can meet up!

LEED for Schools Webinar (free AIA learning unit)–(Today’s Tip)

Interested in LEED as it is applied to schools?

Need to get some AIA learning units?

Then you might want to check out this upcoming, free webinar, “LEED for Schools: Overcoming the Challenges.”

When:  Wednesday, March 21st, 2012 at 2pm EDT

Register for the Webinar Here.

seminar banner




 From the website:  This intermediate seminar will look at the Center of Lifelong Learning in Sayerville, New Jersey, a Platinum level project certified under the LEED for Schools rating system as a case study. The webinar will look at the perspectives of the different team members, including the architect, the construction manager, the owner, and the commissioning agent. Each of these panelists will provide examples of the challenges the project incurred and how the team overcame those hurdles for the project to earn Platinum level certification. The intent of the webinar is meant to provide the attendees with actual strategies specific to the LEED for Schools rating system focusing on the importance of integration and communication.

Upon completion of the seminar, a participant will be able to:

  • Identify proactive measures when pursuing a LEED project during design and construction under the LEED for Schools rating system
  • Assess the challenges of pursuing certain LEED strategies, as related to local building codes
  • Identify the benefits of communicating, education, and training of the entire project team
  • Compare the advantages of the commissioning process

Editor’s Note:  there are certain requirements to getting the LU credit, involving obtaining a passing score on a 10 question quiz following the webinar.  (See site for particulars).

Day Laborers & NC’s Lowest Responsible Bidder law (News Note)

blue jean contractorsTriangle Grading and Paving is a Triad-area company with multiple public contracts, 18 since 2000 from the NC Department of Transportation alone. Frequently the low bidder, Triangle Grading has a long history of performing work for the state. However, a recent high profile controversy has threatened to remove the company from the bid lists for public construction work.  In this past year, the company was fined $400,000 by U.S. Immigration and Customs Enforcement (ICE). The Burlington-based company has the highest fine in North Carolina dating back as far as 2009.  

As you undoubtedly are well aware, North Carolina law requires that any public construction project requiring an estimated total expenditure of greater than $500,000 (or an estimated expenditure on supplies and materials greater than $90,000) be subject to formal bidding procedures. Further, the state or municipality soliciting the bids is required to accept “the lowest responsible bidder.” Some of the factors taken into consideration when determining what a responsible bid is includes performance, quality, and time to completion as specified in the bid.

Knowing that the contract must go to the lowest responsible bidder, contractors may be tempted to cut corners by hiring undocumented workers, who work for less pay than their documented counterparts. By hiring such workers, contractors can lower labor costs significantly, making them much more likely to be the bidder who wins the lucrative project.

Immigration fines may not cause Triangle Grading to lose all potential public clients. The DOT has stated that, when conducting the yearly review of its list of contractors, that while “safety records will be considered […] immigration fines would not be a factor.” However, Winston-Salem is investigating whether these immigration violations should merit a removal from the bid list.

What are your experiences with the requirement of “lowest responsible bidder” on state projects?  Are there changes that need to be made to the program?  Can the system be gamed? Post in the comment section, below.

And, if you have not already signed up for email delivery of these posts, please do so on the right hand side of the blog’s main page.  You’ll not only never miss another post, but you’ll also get a copy of my free white paper on the 7 critical mistakes that engineers and architects make on construction projects.

Photo: (c)   )