ConsensusDOCS Releases “Green” Contract Addendum

By: Joseph M. Leone, LEED AP

ConsensusDOCS 310 Green Building Addendum is a new contract form released by ConsensusDOCS last month that  is intended to establish responsibilities and procedures for green design and construction in construction contracts.  The document is not a stand alone agreement.  It is intended to be attached to and incorporated into a primary agreement, such as the Owner-Architect and/or Owner-Contractor agreements.  By issuing this form as an addendum, ConsensusDOCS followed the same track it utilized with the BIM Addendum, which was released last year.

ConsensusDOCS310 contemplates that the project owner will choose the level of green building it desires which is then identified in the Green Building Addendum as the goal of the project participants.  This could include a status determined by a third party organization, such as LEED, or specific performance criteria, such as energy use.  As a result, the Green Building Addendum is intended to apply whether the project is to be LEED certified or simply includes certain sustainability goals.  In contrast, the AIA “Green” form, the B214, only provides a scope of work for a LEED project.

While the Green Building Addendum sets forth a detailed and potentially complicated process, the most unique aspect of the Addendum may be the creation of a new role on the project – the Green Building Facilitator (GBF).  The owner appoints the GBF early on in the design process.  The GBF may be the architect, construction manager, contractor, or a separate third party.  If the GBF is a separate third party, the Addendum requires that a wholly distinct contract be entered into between the owner and the GBF, yet it does not identify or provide for what that agreement must look like or what terms it must contain.

The GBF undertakes the role of coordinating and facilitating the process of obtaining the level of green building status or sustainability criteria selected by the Owner.  However, the GBF does not have specific design or construction responsibilities.  The Addendum establishes a fairly rigid process for establishing how the chosen level of green building status will be accomplished, and specifies the role of the GBF in carrying out those plans.  That being said, as with any newly created project role, though the process is identified, it remains to be seen how the role of the GBF will unfold in practice.

Beyond the creation of the GBF, the Addendum also expressly provides that the architect and contractor do not have any liability for the failure of the project to achieve the green building status or sustainability goals.  That being said, each may still have liability for their failure to properly design or to perform the work, including the green building measures.  Also, damages incurred by the owner if the project fails to achieve the desired green building status or sustainability goals are defined as consequential damages.  Therefore, if the underlying principal contracts contain a waiver of consequential damages clause, the owner will not be entitled to recover those costs as damages.

As a whole, ConsensusDOCS 310 contemplates a much more detailed and formal process with which to implement green building design and construction than other standard form contracts that have addressed this subject.  The true test of the Addendum will come with its use by the market.    Check back next month for an in-depth breakdown and analysis of the ConsesusDOCS 310 and its impact on green building.

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Daniel M. Drewry

Daniel M. Drewry

Daniel M. Drewry

About This Blog

The DSV Construction Law Blog is hosted by Daniel M. Drewry. Dan is a Partner with the law firm Drewry Simmons Vornehm, LLP and concentrates his practice in the areas of Construction Law and Litigation, and Labor & Employment Law.

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