USGBC

Revocation of LEED Certification is the title of the largest section within the U.S. Green Building Council’s Guide to LEED Certification: Commercial. The more than 2,800 word section consumes over 3 pages of the 7 page guide; far more words are dedicated to revocation than any other topic.

And one of the most common questions by owners considering LEED certification is, does USGBC revoke certification?

However, with all of that attention paid to the topic, Susan Dorn, the USGBC and GBCI General Counsel makes clear”

“While GBCI reserves the right to revoke and there have been a few occasions to review project certification, GBCI has never found a reason to proceed against certification after a review.”

That said, the Certification Challenge Policy may be initiated by GBCI or any third party within 18 months of a project’s certification (an owner is advised to maintain all associated records through that period).

The Certification Challenge Policy is in place to protect the integrity of the LEED certification program. In an incident of intentional misrepresentation which results in an inappropriate award of LEED certification, it is clear that GBCI will reduce the level of certification (e.g., from Gold to Silver) or revoke certification. But such would only happen after the multi level challenge process where an owner is afforded the right to actively participate in the process, including if an owner desires two hearings where witnesses may be called and cross examined, the first before a panel appointed by the GBCI President and the latter before the GBCI Board.

Despite that the policy expressly says it “is not meant to serve as a vehicle for the adjudication of disputes between outside parties” to make certain sub contractors, materialmen and the like do not file challenges, contract documents now commonly have confidentiality provisions, including expressly precluding any such communication.

Certification is a one time grant based upon a one time review, not dissimilar from issuance of a building permit. Only LEED for Existing Buildings: Operations & Maintenance has an expiration date requiring recertification every 5 years. USGBC just recently announced specifics for how projects are to do that.

However, GBCI does also retain the right to revoke certification from any project where it is “not provided with energy and water use data on an ongoing basis after LEED certification is conferred, as required.” To date, GBCI has not been pursuing that data.

Interesting, beyond the guide, the new GBCI Certification Agreement has new provisions expanding termination, including “this Agreement will automatically terminate in full .. upon the complete  or substantial demolition of a Project.” And in an effort to protect the LEED trademarks, “You agree if you use the Marks in any manner that could or does disparage, tarnish, or dilute the distinctive quality of the Marks, .. GBCI will have the right, at its sole option, to terminate this Agreement.”

We know with certainty that GBCI has never revoked a certification, but GBCI does not make public complaints that initiate the Challenge Policy. It is apparent challenges are infrequent. So, among the many issues associated with green building, to quote the Bob Marley lyric, “don’t worry” about revocation of LEED certification.

USGBC proudly boasts that LEED v4 has 80% fewer forms when compared to LEED 2009. Not only are there fewer fields to document with the removal of low value content, but the user experience is further improved including by removing multiple required signatures.

The earlier “LEED Project Registration Agreement” and “LEED Project Certification Agreement” have both been replaced in v4 with a new single Certification Agreement, accessed at the time of project registration through LEED Online after inputting the project details.

Simply stated, the Certification Agreement is “the” contract that governs certification of a project under the LEED program. The contract is with the Green Building Certification Institute, which “administers the Program and confers precertifcation and LEED Certification under license from the U.S. Green Building Council.” There is now one Agreement applicable across all rating systems, including new construction, the Volume Program, Campus Projects and soon to be v4 Homes.  

This is not an attempt to summarize that 14 page almost 8,000 word Agreement (readers of this blog can read the contract at the link above); all participating with LEED should read the online contract carefully and have it reviewed by counsel. This article simply highlights some of the important improvements from the earlier forms (which forms will continue to be used in LEED 2009 and earlier version projects as they are registered and certified).

The new Agreement expends much verbiage on who is the “Owner” beginning in the first paragraph and introduces the new Confirmation of Primary Owner’s Authority form. It also highlights the need for projects, where the owner is not completing the LEED registration process itself to continue to utilize the existing Confirmation of Agent’s Authority form.

The most significant change is that under prior agreements disputes were resolved through litigation in federal court where this Agreement contains a provision requiring the parties seek to resolve all disputes “through open and good faith discussions in the first instance” and if not resolved, “by mediation, administered by the American Arbitration Association (“AAA”) under its Mediation Rules” and if settlement is not then reached, by binding arbitration administered by the AAA.

Another material change, also within the context of dispute resolution, is that for the first time, the prevailing party is entitled to “all costs and expenses of any Arbitration, including reasonable attorneys’ fees and expenses.” These changes in dispute resolution serve to level the playing field in favor of project owners.

While not likely of great import to most, some may be troubled that, “GBCI reserves the right to increase the Fees by no more than twenty seven percent (27%) per calendar year.” An owner may elect to pay all fees in advance and not risk a future increase.    

An owner may at its sole election opt out of pursuing LEED certification and “may terminate this Agreement in whole or in part at anytime.”

The final contract provision eliminates the need to upload hard copy signatures when it provides that selecting the button marked “I AGREE” is your signature.

There is no doubt this Agreement is new and improved from the perspective of a project owner, but be aware, it continues to reflect the unequal bargaining power of the parties and is heavily weighted to protect USGBC and GBCI (including requiring owners to broadly indemnify USGBC).

Article by Stuart Kaplow, appearing courtesy Green Building Law Update.