Monday, February 21, 2011

3 - The IGCC is totally unnecessary - It expands (and redefines) the standard-of-care…

To continue my previous blogs:

· The IGCC is totally unnecessary…there, I said it!
· 1 – The IGCC is totally unnecessary – It’s a stretch to the meaning of “construction / building codes”, and
· 2 - The IGCC is totally unnecessary - It costs architects in fees…

…As everyone knows, we live in a very litigious society; and, without question, the threat and reality of litigation impacts what we draw, say, and even imply as professionals. Much of the basis for litigation comes from what we “should do” or what we “should have done” – while compared to “what another prudent architect would do, in similar situations, in the exercise of his (or her) professional services”. As an attorney who’s familiar with A/E litigation told me recently,

“The [Standard of Care] isn't static. It's whatever you agree to in a contract (customary, highest, best [practices]...), or in the case of a 3rd-party claim for personal injury, what other similar A/E's customarily [perform]... The evidence to a jury of what the standard means and whether it was met has to be presented by experts. You should anticipate that anyone suing an A/E will find an expert to say not following codes is a breach of the standard of care.”
This is the danger within the International Green Construction Code (IGCC). By codifying “sustainability”, our standard of care expands beyond the scope of “building” and into the realm of the “surrounding” environment – beyond the scope of “occupancy” and into the realm of “life-cycle performance”. As a recent AIArchitect article (Volume 18, 2-18-2011) stated (in defense of the IGCC process): (emphasis is added by me)

“Will the adoption of the IGCC expand the architect's legal responsibilities and therefore their exposure to liability? There is no question that it will, but this expansion is both inevitable and necessary.

“This code stretches the boundaries of a traditional building code in several ways.

• With a chapter devoted to natural resource conservation, land use, and development, the IGCC expands the jurisdiction of the code beyond the boundaries of the building envelope and even beyond the boundaries of the site.
• A chapter on material resource efficiency includes requirements for waste management, recycled content, and life cycle assessment.
• The chapter on energy efficiency and atmospheric quality includes a section on commissioning, documentation, and planning for operations and maintenance. As such, the IGCC continues to prescribe requirements beyond the issuance of a Certificate of Occupancy, the traditional termination of a building code's involvement.

“Despite much concern, there have been only a limited number of lawsuits filed against architects for their role in the certification of a building in accordance with the USGBC's LEED program. The newly-developed IGCC raises similar concerns. However, the AIA has both sponsored this code and been substantially represented on its drafting committees. Through continued involvement in the evolution of the IGCC, the delegation of responsibilities can be clarified and the terms and conditions of its enforcement refined. Backing away from the expanded scope of the IGCC and its implications for the profession is not an option.”

This is scary stuff. I’m supposed to believe that it’s “inevitable and necessary” that my standard of care will expand from serving the needs of my client to serving the needs of the neighborhood – from preventing roof leaks to preserving ice caps – from flashing windows to facilitating wildlife habitats?

That is totally untrue! Expanding the standard of care into “saving the planet” is NOT inevitable as long as I have a choice; however, when sustainability is codified (through the IGCC), my choice will become a legal mandate. The legal mandate (code requirements) will enable standard-of-care expansion and the probability of litigation – far beyond the “limited number of lawsuits” that have previously been filed against architects.

And I’m supposed to feel protected because the AIA will generate revised contract documents so that “the delegation of responsibilities can be clarified and the terms and conditions of its [the IGCC] enforcement refined”? Can you imagine the contract language required to indemnify our actions regarding compliance with the building code – specifically design impact “beyond the boundaries of the site”, and buildings that don’t perform to the “life-cycle-assessment”? - And what about the statute-of-repose – if the code mandates that our standard of care covers “requirements beyond the issuance of a certificate of occupancy”? The number of lawsuits will grow exponentially, as architects (and engineers) struggle to comply with code-required performance standards that can be as ambiguous (or nebulous) as “sustainability” and/or “climate change”.

Frankly, if the IGCC is adopted (by local jurisdictions), there will be no indemnification for simple “code compliance” – and that will doom our profession to thick, verbose contracts; and attorneys on-call – (and just wait until the insurance industry wises-up and excludes “sustainability compliance” from what’s included as “covered” – but that’s another story).

In summary, because of its impact on our standard of care, the IGCC is totally unnecessary! Keep sustainability as an optional service – covered under separate contractual provisions – keep it out of the building code, away from our (basic) standard of care, and remove sustainable “inevitability and necessity” from our already overbearing practice complexities.

Next time: 4 - The IGCC is totally unnecessary – It requires extensive municipal code-effort to comply with …

BTW: The article excerpted above was written by A. Vernon Woodworth, AIA, LEED AP… LEED is a trademark of the U. S. Green Building Council’s Leadership in Energy and Environmental Design rating system.

No comments:

Post a Comment