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Practice Update: Risk and LEED Online Version 3

By Ken L. Ross, Jr., FAIA, FACHA

AIA Interim Vice President, Design and Practice

When I joined the AIA National staff in December, I pledged to apply my 35+ years of practice experience to help the Institute help members anticipate and respond to the challenges of today’s architectural practice. Over the coming months, this column will explore issues that fuel and replenish our passion for architecture balanced with the practicalities of risk management and professional liability.

It is in that spirit that I bring to your attention a matter of significance that may affect architects seeking LEED designations for their projects. Notwithstanding the AIA and USGBC shared goal of a sustainable built environment, which characterizes our ongoing collaboration, the AIA Large Firm Roundtable recently surfaced several issues in the 2009 LEED Online Version 3 that could increase professional liability exposure for your firm.

The AIA shared these concerns with USGBC and the Green Building Certification Institute (GBCI), the entity that administers the LEED certification process. Dialogue has continued on these issues since first introduced last summer and AIA’s comments have been considered by GBCI in their revisions scheduled to be posted this week. During this same timeframe, GBCI also responded to other concerns and took the opportunity to make additional changes to LEED Online Version 3.

Unfortunately, USGBC/GBCI’s schedule for posting the changed LEED documents did not allow the AIA an opportunity to fully review the changes to determine whether the initial AIA concerns were resolved or if other practice issues have arisen as a result of the changes. And until a full AIA review of the changes is completed, I urge you to take a few minutes to become familiar with the updated LEED online project registration and certification documentation process.

An initial AIA review of the changes identified the following related to three agreements executed as part of the LEED Online Version 3 (LOL3) certification process:

    Project Registration Agreement
    According to its terms, the agreement seeks to eliminate potential liability of GBCI by excluding GBCI’s liability for simple negligence or breach of contract as well as permitting GBCI to delegate obligations and disclaim all warranties.

    Project Review Agreement (previously titled Project Certification Agreement)
    This agreement is required to begin the certification process of a registered project and contains many provisions similar to those in the registration agreement.

    Confirmation of Agent’s Authority Document
    Execution of this document is intended to establish that authority by creating an agency relationship between the owner and the person acting on the owner’s behalf. The architect most often assumes this role in the LEED certification process.

The LEED Certification Policy Manual and the Legal Terms and Conditions for using LOL3 have also been revised.

As you are aware, the GBCI only permits project registration using LOL3. Therefore, the person registering the project must accept these agreements to complete the registration process. AIA members should read each of the LOL3 agreements thoroughly and, as recommended by USGBC and GBCI, consult with an attorney and professional liability insurance carrier before executing any of the agreements. Additionally, the Owner and any other members of the design and construction team, such as engineers or consultants, should also be alerted to the responsibilities stated or implied by the USGBC/GBCI or any other registration process.

Look for additional information on the pace of our progress in conducting a thorough review of these new agreements via AIArchitect,, and other AIA communication channels.

Assuming risk is a reasonable part of the equation in an architectural practice, no different from incorporating sustainable design into our service offering. On the horizon, AIA Contract Documents is working with a range of key industry stakeholders representing owners, contractors, and architects to develop a document intended to help provide guidance to users of AIA Contract Documents regarding some of the key contractual risks unique to sustainable design and construction.

And moving forward, watch for more insights from my new team dedicated to contributing to the profession’s design and practice body of knowledge.

Ken Ross recently retired as Senior Principal and former President of WHR Architects, Inc., a 170-person Houston-based, full-service architecture, interior design, and technology planning firm. He was licensed in thirty-six states, the District of Columbia, and two Canadian Provinces, and practiced in 26 states and four foreign countries.


Ken L. Ross, Jr., FAIA, FACHA


Questions about LEED Online Version 3

What is the Green Building Certification Institute (GBCI)?

According to the Green Building Certification Institute: “The GBCI is an independent, third-party organization committed to ensuring precision in the design, development, and implementation of the processes used to increase and measure green building performance (certification) and green building practice (credentialing). Established in 2008 to administer project certifications and professional credentials and certificates within the framework of the U.S. Green Building Council’s Leadership in Energy and Environmental Design (LEED®) Green Building Rating Systems™, GBCI offers the marketplace the highest-level validation that LEED building certifications and LEED professional credentials have met specific, rigorous criteria. In early 2009, GBCI assumed responsibility for administering the LEED certification program under which more than 17,000 commercial projects now await certification.”

I have a project in process using LOL3. What should I do?

Review the Terms and Conditions for use of LOL3, the Project Registration Agreement, and Project Certification Agreement available on GBCI’s Web site. Consult with your attorney and professional liability insurance carrier when appropriate.

I am about to register a project using LOL3. Should I wait?

Review the Terms and Conditions for use of LOL3, the Project Registration Agreement, and Project Certification Agreement available on GBCI’s Web site. Consult with your attorney and professional liability insurance carrier when appropriate.

Is GBCI going to make changes to these agreements?

The AIA and AIA LFRT have requested a number of changes be made to these agreements. The USGBC and GBCI have requested that AIA representatives be highly engaged in discussions regarding revisions to the agreements.

I am using AIA Contract Documents for my project. Is this covered in the Owner/Architect Agreement?

No. AIA contract documents currently do not address the specific issues in the LOL3 agreements. However, the contract documents committee and staff are aware of these issues and are monitoring the situation closely.


Back to AIArchitect January 21, 2011

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