If you were to survey green building critics, it’s safe to guess most will argue that the cost to build green do not outweigh the benefits.

Indeed, many have suggested that the cost of building green (especially gaining LEED certification) is significantly higher than building to ordinary standards.   Others argue that LEED certification can be achieved through an everyday budget.

Regardless of where you fall on this issue, everyone should agree that green building projects have certain specifications, and bidding contractors must project the construction costs responsibly.

And so, one of the most challenging components of a constructing a green building may be the process of bidding it.

Since green building work is just starting to take hold in the construction industry, many contractors and subcontractors are working on little-to-no experience on green projects.   And sometimes the data behind green building techniques and products are thin (see greenwashing).

On Wolfe Law Group’s Construction Law Monitor, we published a 2-part article on the Bidding Process and Change Orders:   Bidding Errors and Change Orders: Avoiding a Nightmare [Part One and Part Two].

How do we suggest you avoid Bidding Error nightmares?   Spend time with the Contract Documents pre-bid.

With green building projects, this is more true than usual.

When preparing your green bid, here are some example thoughts that should be considered:

• If the project is being certified with LEED or another standard, who will be responsible for the submittal process?   Who will be responsible for monitoring the construction process?
• Contact vendors who will be providing the project’s materials, and review the data they have to back-up their performance and environmental claims.   It would be a pity to plan on using one product, and being forced to later use a more expensive substitute.   See this article on how to shop for green building materials.
• If the builder is anticipating a tax credit, do you understand the requirements to qualify for the credit?   Will this increase your construction costs?

A successful green building project starts where successful ordinary projects begin:  during the bidding and contracting period.

Whether your green building project will increase costs, or not, understand the green building expenses associated with your project, and avoid bidding errors and change order nightmares.

There are a growing number of construction attorneys getting certified in green building professional courses and touting themselves as “green litigation attorneys.”  Our friends over at the Best Practices Construction Law blog just posted an interesting blog article about whether there is a difference between “green building law” and ordinary run-of-the-mill “law.”

The article is titled:  Green Building for Attorneys:  Is It Merely Hoopla? (spoiler: author concludes that it is not merely hoopla).  The article discusses another blog post on the subject from LAW/ARK:  The Real Green Goblin – Emerging Legal Liability for Green Design Professionals and Contractors (Part 1).

Since we’re writing this article on the “Louisiana Green Building Law Blog,” you likely know where we come down on this issue.  And we clearly have a dog in the fight.  But our reasons might surprise you.

Here is the argument

Here is a quote from the LAW/ARK post, in support of the position that “green building law is just law:”

The bad news is that attorneys, especially those already practicing in construction law, will soon realize that aside from green design and construction’s sometimes specialized and occasionally ill-defined vernacular, there’s no real novelty in the types of claims that might arise. No new frontiers of jurisprudence need be explored – a leaky green roof is still a leaky roof – whether it also requires regular mowing and landscape maintenance changes little from a legal perspective.

In response, Matt DeVries at the Best Practices Construction Law blog says that while it may be correct that there is no novelty to the types of claims that may arise in green construction disputes:

The novelty in the green building industry is the new set of standards that will inevitably become part of the legal dispute.   In other words, while ‘a leaky green roof is still a leaky roof’…there will be new risk to be allocated, different types of damages lost, additional players involved, varied proof required, and yes, perhaps a novel cause of action alleged because that leaky green roof system failed.

Here is our voice

There is something important that is not discussed in LAW/ARK’s post about green building law:  the underlying claims themselves.

The leaky roof analogy is actually not spot-on, because if the roof was leaking, the claim wouldn’t necessarily be a “green building claim.”   It would be an ordinary claim.  A green building claim would occur when the green roof didn’t perform as it was anticipated from an energy savings or environmental perspective.   Or, if the green roof didn’t meet the standards of the Green Building Council or other accreditation organization, and the property lost a valuable certification.

Of course it all boils down to unfulfilled expectations, but what separates a green building attorney from an ordinary construction attorney is that they have a true understanding of the expectations.   It’s what Matt DeVries points out:  understanding the “new risk,” “different types of damages lost, additional players invovled, varied proof required,” and more.

After all, what really separates a construction attorney from an ordinary business attorney?   Breach of an ordinary contract and breach of a construction contract involve the same claims…but what separates the construction attorney is her familiarity with the construction industry, and the types of damages, players, risks and claims that frequently arise.

The same must be said for Green Building counselors.  It’s not a new body of law, it’s just a new set of situations.

On March 26, 2009, in Portland, The Green Building Initiative (GBI) and the American Institute of Architects (AIA) joined forces and each of its leaders signed a memorandum of understanding.

In a co-press release from the two organizations, they state that the memo pledges “to work together to promote the design and construction of energy efficient and environmentally responsible buildings.”

Ward Hubbell, President of GBI expressed his excitement about the venture:

We look forward to continuing our work with them (AIA) towards our shared goal of achieving widespread acceptance of sustainable design and construction practices.

Chris McEntee, Executive Vice President and CEO of the AIA, boldly stated that they “look forward to working with the GBI on our common goal of reaching carbon neutral buildings by 2030.”

The high points of the agreement are:

-  Through education and training, promote design of energy-efficient, healthier and environmentally responsible buildings;

-  Research green buildings to see what the outcomes are related to economic and environmental performance;

What does this mean for Louisiana green building projects?

We’re not entirely sure yet, but hopefully partnerships like this will spur on other organizations to step up their commitment to greener construction.

Further, with the AIA / GBI partnership, and the AIA’s “Walk the Walk” green promotion, we’ll soon see some interest in blending green building principals, submittals and issues in the popular contract documents.