Designing Buildings - User contributions [en]

Making BREEAM Contractually Enforceable

2019-03-04T17:58:24Z

John Easton:

A developer / client who commissions a construction project might choose to make BREEAM assessment a contractually binding requirement; stipulating a certified rating of pass, good, very good, excellent, or outstanding.

== The circumstances ==

A decision to make BREEAM a specific contract requirement can arise from:

# A contractual commitment to a tenant / occupier or purchaser;
# A condition of funding, typically set by an investment fund or a public funding body;
# A condition of planning consent;
# A standing policy commitment previously set by the developer / client e.g. corporate social responsibility policy, or environmental policy.

== The objective ==

The main objective in these circumstances is usually to “transfer risk” for obtaining the target rating to one or more of the organisations that will deliver the project.

== Enforceability ==

To be contractually enforceable, stipulations concerning BREEAM must be:

* Correctly described
* Appropriately allocated
* Without gaps or overlaps in allocated responsibility
* Practically deliverable, with respect to time, cost, and quality
* Reasonable, measurable, and proportionate concerning any remedy for non-performance, if that is to be set

== The core requirement ==

The core stipulation concerning BREEAM should be passed down to every organisation that forms part of the project delivery team, and should:

* Clearly identify the overarching KPI e.g. BREEAM Excellent;
* Correctly name the appropriate KPI standard e.g. BREEAM UK New Construction 2018 v2.0, Primary School building type, fully fitted (obtain an initial “scheme definition” from BRE through a BREEAM assessor if in any doubt);
* State whether any or all of 1 to 4 apply (above), and state the amount (£) of the funds that are at stake with certification (particularly where 1 or 2 applies), which is essential if liquidated and ascertained damages provisions are to be applied to non-performance.

== Writing it down ==

Provisions concerning BREEAM should be included with:

* The strategic brief where one is prepared, and with the design brief that is given to the design team;
* The budget and cost plan, bearing in mind that standard cost yardsticks do not routinely cover every aspect of BREEAM compliance;
* The scopes of service that form part of the professional appointment for each member of the design team;
* The preliminaries and general conditions for the construction contract/s;
* The appointment or contract terms for sub-consultants, sub-contractors, suppliers, and other supporting specialists, which should mirror appropriately the terms that apply to the organisation who will employ them.

== Detailed provisions ==

In addition to stating the overarching BREEAM requirement, professional appointments and construction contract terms should go on to require that the principal parties:

* Agree credit ownerships (for compliance with the assessment criteria and for the collation and provision of evidence for assessment) with the BREEAM assessor, along with any necessary supporting contribution/s by other identified parties, including any key construction stage contribution/s by the contractor/s (a responsibilities matrix can assist with this). Note also that:
*
* Each assessment issue (e.g. Visual Comfort) should have only ONE principal credit owner (e.g. Architect – principally for Glare, Daylighting, and View Out) but could also name one or more supporting contributor as appropriate (e.g. Services Engineer – for internal and external electrical lighting)
* Each individual evidence requirement that is set out by the BREEAM assessor should then be highlighted and clearly identified against the appropriate party. e.g. Lighting layout drawings and/or room data sheets/schedules are required. [Services Engineer]
* Any reallocation of responsibilities after the pre-assessment stage should require authorisation; by the employer, project manager, or lead consultant during the design stage, or the contract administrator during the construction and post construction stages.
*
* Secure the mandatory “minimum standards” that apply to the stipulated BREEAM rating. These should be itemised with the scopes of service and with the contract preliminaries and general conditions as appropriate (see the Minimum Standards section of the BREEAM technical manual).
* Implement (or advise the employer in good time as appropriate concerning) any specialist appointments, and/or the completion of key consultations, surveys, and studies that must occur at key RIBA work stages where the BREEAM assessment criteria set time limits for these.
* Assist the BREEAM assessor to identify additional elective credits beyond the targeted percentage score, as a contingency for the likelihood that not all the elective credits that are targeted initially will be secured ultimately.
* Provide sufficient resources for the timely completion of the assessment, bearing in mind in particular that completion of the post construction stage of the assessment may extend beyond the contract date for making good defects, thereby extending the date for settlement of the final account.

== Technical specifications ==

How technical specifications are worded can influence how or whether the BREEAM assessment criteria can be met:

* Where a material, product, or system is named with the specifications (e.g. Acme Type X wash basin tap) it is implicit that the specifier will have established that it is BREEAM compliant beforehand.
* Occasionally a specification will permit an “equal and approved” alternative for the named item however, which can be misinterpreted to allow the contractor to make a non-compliant substitution (e.g. a different wash basin tap, which might have a higher flow rate).
* Performance specification can also be used to describe technical and/or appearance requirements (e.g. a full flow rate of # litres per minute for the wash basin tap, measured at a dynamic pressure of 3±0.2 bar), without brand-naming a material, product, or system, leaving the contractor to select the manufacturer and/or model subject “to approval” by the contract administrator.
* A provisional sum can sometimes be made with a construction contract for things that are not yet defined in enough detail for tenderers to accurately price.

== Demonstrating compliance ==

In each case where the contractor is permitted to select a material, product, or system they must demonstrate to the contract administrator that the proposed selection is equal in terms of its BREEAM compliance, as well as any of its other technical characteristics, and/or its appearance where relevant.

The contract administrator should seek guidance from the design team and the BREEAM assessor as appropriate where compliance with the assessment criteria needs to be established.

Bear in mind that specification clauses that simply state “comply with BREEAM” are too vague. The wording of specification clauses should be drawn directly from the written assessment criteria and the evidence requirements that are set out in the relevant sections of the BREEAM technical manual, remembering to include in full any references to other external standards that are given there e.g. British or European Standards, BSRIA, or CIBSE Guides etc.

== Procurement route ==

How or whether stipulations concerning BREEAM can be made contractually binding will depend on the chosen procurement route for the project.

== Traditional contracts ==

Procurement options that follow a more “traditional” fully designed / fully measured route present the contractor/s at the tender and construction stages with a complete set of drawings, schedules, specifications, and bill of quantities from which to price and construct the works.

In following this type of route, the only BREEAM credits that the contractor/s should need to actively address are those that relate to sustainable construction site management and construction supply chain management. The contractor/s should be able to expect that compliance with all the remaining assessment criteria will have been addressed at the design stage and will already be embodied in the drawings, specifications, etc. that form the contract documents.

== Contractor design ==

Contracts that involve design and build, or a contractor design portion, leave the contractor/s to complete some or all of the construction information based on a design intent that is prepared by the design team. This means that certain aspects of the design might require further development and completion by the contractor/s to comply fully with the assessment criteria and to complete the evidence for assessment.

== Novation ==

It is not uncommon with a design and build route for the appointments of some or all of the design team to be transferred from the employer to the contractor by novation at the stage when the construction contract is awarded, with the purpose of transferring any remaining design risk to the contractor from that point. The scopes of service and the contract preliminaries and general conditions should reflect therefore how responsibility for completing the design (and the evidence for assessment) is allocated initially, and is then transferred by novation where that is to occur.

== Collateral Warranties ==

Collateral warranties can sometimes be sought by a developer / client where a duty of care is to be assigned to a third party; typically to a funder, purchaser, or tenant / occupier. Collateral warranties were intended initially to allow the beneficiary/s of the warranty to recover direct economic loss arising from building defects and account for indirect liability (such as where work by a sub-contractor is otherwise covered by the main contractor's warranty to the developer client and the main contractor becomes insolvent). It is arguable whether failure to obtain a certified BREEAM rating would be covered by a collateral warranty therefore, since a BREEAM certificate is not a latent defect that could come to light only some time after initial contract completion.

Expert legal advice should be obtained in each case where collateral warranties are to be sought or given.

== Serial contracting ==

Some forms of contracting will place the entire project delivery process under the control of one contractor, either through management contracting or by construction management. The construction delivery process is more commonly organised as a series of contracts however; i.e. enabling works if needed, then construction works, occasionally with separate fit-out works.

Contracts can be let ahead of and separately from the main construction contract for various enabling works, which typically can include surveys, and site investigation, demolition and/or remediation works. If enabling works are not under the direct control of the contractor who will deliver the main construction contract, then it is crucial that the terms for enabling works include stipulations concerning sustainable construction site management, and construction supply chain management, which mirror the terms that are included in the main construction contract, including the provision of evidence for assessment.

Similar arrangements should be made where the scope of the BREEAM assessment includes fit-out works, and they are to be the subject of one or more follow on contracts, separate from the main construction contract.

Where dedicated off-site manufacturing or fabrication forms part of the construction supply chain (i.e. where that is specifically for the project under assessment), then provisions concerning sustainable construction site management, construction supply chain management, and evidence provision should be included in those contracts as well.

Where a serial contracting route is followed i.e. enabling works, construction works, and then fit-out works, then the chain of any contractor-owned credits can potentially be broken at each step. For example, it is likely that credits for supply chain management would not be awardable for the project if any one of the contractors fail to meet the assessment criteria or doesn’t provide the related evidence for assessment.

== Retention ==

Staged interim payment will usually include a retention amount to ensure that the contractor/s properly complete the activities required of them under the contract. These are calculated as a percentage of the total contract sum, and will not routinely include the valuation of a final BREEAM certificate.

== Remedies for non-performance ==

If a financial remedy is to be applied where the targeted BREEAM rating is not obtained, then it is important that:

* Its amount is a reasonable reflection of the associated direct financial loss, e.g. the amount of the funds withheld from the developer / client by an investment fund or a public funding body where a certified BREEAM rating had been set as a condition, or from the reduced sale or rental value of the assessed building.
* Any financial remedy should only be sought from the appropriate party/s, having set out with the contract terms what is at stake and the mechanism for its recovery.

== BREEAM Certificate Timing ==

An interim BREEAM certificate can be obtained at the end of the design stage, and a final BREEAM certificate at the end of the post construction stage of the assessment. The end of the assessment stages is not directly linked to the key design and construction contracting milestones, however. It is important to bear in mind, that it may not be practical to tie obtaining a BREEAM certificate to a contract event therefore, which can include:

* Contract award
* Site possession
* Phased or sectional completion
* Practical completion
* Beneficial occupancy and use, ahead of practical completion
* Completion of making good defects
* Final certificate
* Final account

== Summary Watch Points ==

* Appoint the BREEAM assessor, or a BREEAM advisory professional, as early as possible, ideally from RIBA Stage 0, to support the agreement of strategic performance targets, to monitor progress against targets, to assist with identifying risks and opportunities, and to provide feedback concerning BREEAM;
* Ensure that the core stipulation concerning BREEAM is passed down to every organisation that forms part of the project delivery team, and is reflected in the related appointment and contract documents;
* Agree credit ownerships and any potential supporting contributions at the initial pre-assessment stage and before starting the design stage of the assessment;
* Be aware of the implications for BREEAM of the chosen procurement route;
* Close out the design stage of the assessment before tendering the construction contract/s, OR set out any remaining BREEAM related design stage requirements with the contract where contractor design is involved;
* Include a current BREEAM strategy/tracker report among employer requirements with the tender documents;
* Monitor the BREEAM compliance of materials, products, or systems that are at the contractor’s discretion to select;
* Appoint a BREEAM advisory professional for the construction and handover stages, to monitor construction progress where decisions critically impact BREEAM performance, identify risks and opportunities related to the procurement and construction process, provide feedback to the constructors and the project team as appropriate, and to monitor the generation and provision of evidence to the assessor;
* Be aware of the limitations that apply to any remedies that are set for non-performance;
* Always seek appropriate legal advice concerning contract matters.

== Disclaimer ==

This article has been written in the context of UK construction practice. Practices elsewhere may apply differently.

This article does not seek to offer legal opinion or guidance, or template wording for contracts. Always seek appropriate legal advice concerning contract matters.

[[Category:BREEAM]] [[Category:Sustainability]] [[Category:Appointments]] [[Category:Client_procedures]] [[Category:Construction_management]] [[Category:Contracts_/_payment]] [[Category:Design]] [[Category:Procurement]] [[Category:Products_/_components]] [[Category:Property_development]] [[Category:Public_procedures]] [[Category:Roles_/_services]]

Making BREEAM Contractually Enforceable

2019-03-04T17:56:44Z

John Easton:

A developer / client who commissions a construction project might choose to make BREEAM assessment a contractually binding requirement; stipulating a certified rating of pass, good, very good, excellent, or outstanding.

== The circumstances ==

A decision to make BREEAM a specific contract requirement can arise from:

# A contractual commitment to a tenant / occupier or purchaser;
# A condition of funding, typically set by an investment fund or a public funding body;
# A condition of planning consent;
# A standing policy commitment previously set by the developer / client e.g. corporate social responsibility policy, or environmental policy.

== The objective ==

The main objective in these circumstances is usually to “transfer risk” for obtaining the target rating to one or more of the organisations that will deliver the project.

== Enforceability ==

To be contractually enforceable, stipulations concerning BREEAM must be:

* Correctly described
* Appropriately allocated
* Without gaps or overlaps in allocated responsibility
* Practically deliverable, with respect to time, cost, and quality
* Reasonable, measurable, and proportionate concerning any remedy for non-performance, if that is to be set

== The core requirement ==

The core stipulation concerning BREEAM should be passed down to every organisation that forms part of the project delivery team, and should:

* Clearly identify the overarching KPI e.g. BREEAM Excellent;
* Correctly name the appropriate KPI standard e.g. BREEAM UK New Construction 2018 v2.0, Primary School building type, fully fitted (obtain an initial “scheme definition” from BRE through a BREEAM assessor if in any doubt);
* State whether any or all of 1 to 4 apply (above), and state the amount (£) of the funds that are at stake with certification (particularly where 1 or 2 applies), which is essential if liquidated and ascertained damages provisions are to be applied to non-performance.

== Writing it down ==

Provisions concerning BREEAM should be included with:

* The strategic brief where one is prepared, and with the design brief that is given to the design team;
* The budget and cost plan, bearing in mind that standard cost yardsticks do not routinely cover every aspect of BREEAM compliance;
* The scopes of service that form part of the professional appointment for each member of the design team;
* The preliminaries and general conditions for the construction contract/s;
* The appointment or contract terms for sub-consultants, sub-contractors, suppliers, and other supporting specialists, which should mirror appropriately the terms that apply to the organisation who will employ them.

== Detailed provisions ==

In addition to stating the overarching BREEAM requirement, professional appointments and construction contract terms should go on to require that the principal parties:

* Agree credit ownerships (for compliance with the assessment criteria and for the collation and provision of evidence for assessment) with the BREEAM assessor, along with any necessary supporting contribution/s by other identified parties, including any key construction stage contribution/s by the contractor/s (a responsibilities matrix can assist with this). Note also that:
*
* Each assessment issue (e.g. Visual Comfort) should have only ONE principal credit owner (e.g. Architect – principally for Glare, Daylighting, and View Out) but could also name one or more supporting contributor as appropriate (e.g. Services Engineer – for internal and external electrical lighting)
* Each individual evidence requirement that is set out by the BREEAM assessor should then be highlighted and clearly identified against the appropriate party. e.g. Lighting layout drawings and/or room data sheets/schedules are required. [Services Engineer]
* Any reallocation of responsibilities after the pre-assessment stage should require authorisation; by the employer, project manager, or lead consultant during the design stage, or the contract administrator during the construction and post construction stages.
*
* Secure the mandatory “minimum standards” that apply to the stipulated BREEAM rating. These should be itemised with the scopes of service and with the contract preliminaries and general conditions as appropriate (see the Minimum Standards section of the BREEAM technical manual).
* Implement (or advise the employer in good time as appropriate concerning) any specialist appointments, and/or the completion of key consultations, surveys, and studies that must occur at key RIBA work stages where the BREEAM assessment criteria set time limits for these.
* Assist the BREEAM assessor to identify additional elective credits beyond the targeted percentage score, as a contingency for the likelihood that not all the elective credits that are targeted initially will be secured ultimately.
* Provide sufficient resources for the timely completion of the assessment, bearing in mind in particular that completion of the post construction stage of the assessment may extend beyond the contract date for making good defects, thereby extending the date for settlement of the final account.

== Technical specifications ==

How technical specifications are worded can influence how or whether the BREEAM assessment criteria can be met:

* Where a material, product, or system is named with the specifications (e.g. Acme Type X wash basin tap) it is implicit that the specifier will have established that it is BREEAM compliant beforehand.
* Occasionally a specification will permit an “equal and approved” alternative for the named item however, which can be misinterpreted to allow the contractor to make a non-compliant substitution (e.g. a different wash basin tap, which might have a higher flow rate).
* Performance specification can also be used to describe technical and/or appearance requirements (e.g. a full flow rate of # litres per minute for the wash basin tap, measured at a dynamic pressure of 3±0.2 bar), without brand-naming a material, product, or system, leaving the contractor to select the manufacturer and/or model subject “to approval” by the contract administrator.
* A provisional sum can sometimes be made with a construction contract for things that are not yet defined in enough detail for tenderers to accurately price.

== Demonstrating compliance ==

In each case where the contractor is permitted to select a material, product, or system they must demonstrate to the contract administrator that the proposed selection is equal in terms of its BREEAM compliance, as well as any of its other technical characteristics, and/or its appearance where relevant.

The contract administrator should seek guidance from the design team and the BREEAM assessor as appropriate where compliance with the assessment criteria needs to be established.

Bear in mind that specification clauses that simply state “comply with BREEAM” are too vague. The wording of specification clauses should be drawn directly from the written assessment criteria and the evidence requirements that are set out in the relevant sections of the BREEAM technical manual, remembering to include in full any references to other external standards that are given there e.g. British or European Standards, BSRIA, or CIBSE Guides etc.

== Procurement route ==

How or whether stipulations concerning BREEAM can be made contractually binding will depend on the chosen procurement route for the project.

== Traditional contracts ==

Procurement options that follow a more “traditional” fully designed / fully measured route present the contractor/s at the tender and construction stages with a complete set of drawings, schedules, specifications, and bill of quantities from which to price and construct the works.

In following this type of route, the only BREEAM credits that the contractor/s should need to actively address are those that relate to sustainable construction site management and construction supply chain management. The contractor/s should be able to expect that compliance with all the remaining assessment criteria will have been addressed at the design stage and will already be embodied in the drawings, specifications, etc. that form the contract documents.

== Contractor design ==

Contracts that involve design and build, or a contractor design portion, leave the contractor/s to complete some or all of the construction information based on a design intent that is prepared by the design team. This means that certain aspects of the design might require further development and completion by the contractor/s to comply fully with the assessment criteria and to complete the evidence for assessment.

== Novation ==

It is not uncommon with a design and build route for the appointments of some or all of the design team to be transferred from the employer to the contractor by novation at the stage when the construction contract is awarded, with the purpose of transferring any remaining design risk to the contractor from that point. The scopes of service and the contract preliminaries and general conditions should reflect therefore how responsibility for completing the design (and the evidence for assessment) is allocated initially, and is then transferred by novation where that is to occur.

== Collateral Warranties ==

Collateral warranties can sometimes be sought by a developer / client where a duty of care is to be assigned to a third party; typically to a funder, purchaser, or tenant / occupier. Collateral warranties were intended initially to allow the beneficiary/s of the warranty to recover direct economic loss arising from building defects and account for indirect liability (such as where work by a sub-contractor is otherwise covered by the main contractor's warranty to the developer client and the main contractor becomes insolvent). It is arguable whether failure to obtain a certified BREEAM rating would be covered by a collateral warranty therefore, since a BREEAM certificate is not a latent defect that could come to light only some time after initial contract completion.

Expert legal advice should be obtained in each case where collateral warranties are to be sought or given.

== Serial contracting ==

Some forms of contracting will place the entire project delivery process under the control of one contractor, either through management contracting or by construction management. The construction delivery process is more commonly organised as a series of contracts however; i.e. enabling works if needed, then construction works, occasionally with separate fit-out works.

Contracts can be let ahead of and separately from the main construction contract for various enabling works, which typically can include surveys, and site investigation, demolition and/or remediation works. If enabling works are not under the direct control of the contractor who will deliver the main construction contract, then it is crucial that the terms for enabling works include stipulations concerning sustainable construction site management, and construction supply chain management, which mirror the terms that are included in the main construction contract, including the provision of evidence for assessment.

Similar arrangements should be made where the scope of the BREEAM assessment includes fit-out works, and they are to be the subject of one or more follow on contracts, separate from the main construction contract.

Where dedicated off-site manufacturing or fabrication forms part of the construction supply chain (i.e. where that is specifically for the project under assessment), then provisions concerning sustainable construction site management, construction supply chain management, and evidence provision should be included in those contracts as well.

Where a serial contracting route is followed i.e. enabling works, construction works, and then fit-out works, then the chain of any contractor-owned credits can potentially be broken at each step. For example, it is likely that credits for supply chain management would not be awardable for the project if any one of the contractors fail to meet the assessment criteria or doesn’t provide the related evidence for assessment.

== Retention ==

Staged interim payment will usually include a retention amount to ensure that the contractor/s properly complete the activities required of them under the contract. These are calculated as a percentage of the total contract sum, and will not routinely include the valuation of a final BREEAM certificate.

== Remedies for non-performance ==

If a financial remedy is to be applied where the targeted BREEAM rating is not obtained, then it is important that:

* Its amount is a reasonable reflection of the associated direct financial loss, e.g. the amount of the funds withheld from the developer / client by an investment fund or a public funding body where a certified BREEAM rating had been set as a condition, or from the reduced sale or rental value of the assessed building.
* Any financial remedy should only be sought from the appropriate party/s, having set out with the contract terms what is at stake and the mechanism for its recovery.

== BREEAM Certificate Timing ==

An interim BREEAM certificate can be obtained at the end of the design stage, and a final BREEAM certificate at the end of the post construction stage of the assessment. The end of the assessment stages is not directly linked to the key design and construction contracting milestones, however. It is important to bear in mind, that it may not be practical to tie obtaining a BREEAM certificate to a contract event therefore, which can include:

* Contract award
* Site possession
* Phased or sectional completion
* Practical completion
* Beneficial occupancy and use, ahead of practical completion
* Completion of making good defects
* Final certificate
* Final account

== Summary Watch Points ==

* Appoint the BREEAM assessor, or a BREEAM advisory professional, as early as possible, ideally from RIBA Stage 0, to support the agreement of strategic performance targets, to monitor progress against targets, to assist with identifying risks and opportunities, and to provide feedback concerning BREEAM;
* Ensure that the core stipulation concerning BREEAM is passed down to every organisation that forms part of the project delivery team, and is reflected in the related appointment and contract documents;
* Agree credit ownerships and any potential supporting contributions at the initial pre-assessment stage and before starting the design stage of the assessment;
* Be aware of the implications for BREEAM of the chosen procurement route;
* Close out the design stage of the assessment before tendering the construction contract/s, OR set out any remaining BREEAM related design stage requirements with the contract where contractor design is involved;
* Include a current BREEAM strategy/tracker report among employer requirements with the tender documents;
* Monitor the BREEAM compliance of materials, products, or systems that are at the contractor’s discretion to select;
* Appoint a BREEAM advisory professional for the construction and handover stages, to monitor construction progress where decisions critically impact BREEAM performance, identify risks and opportunities related to the procurement and construction process, provide feedback to the constructors and the project team as appropriate, and to monitor the generation and provision of evidence to the assessor;
* Be aware of the limitations that apply to any remedies that are set for non-performance;
* Always seek appropriate legal advice concerning contract matters.

== Disclaimer ==

This article has been written in the context of UK construction practice. Practices elsewhere may apply differently.

This article does not seek to offer legal opinion or guidance, or template wording for contracts. Always seek appropriate legal advice concerning contract matters.

Author: [https://www.designingbuildings.co.uk/wiki/User:John_Easton John Easton]

[[Category:BREEAM]] [[Category:Sustainability]] [[Category:Appointments]] [[Category:Client_procedures]] [[Category:Construction_management]] [[Category:Contracts_/_payment]] [[Category:Design]] [[Category:Procurement]] [[Category:Products_/_components]] [[Category:Property_development]] [[Category:Public_procedures]] [[Category:Roles_/_services]]

Making BREEAM Contractually Enforceable

2019-03-04T17:10:51Z

John Easton:

A developer / client who commissions a construction project might choose to make BREEAM assessment a contractually binding requirement; stipulating a certified rating of pass, good, very good, excellent, or outstanding.

== The circumstances ==

A decision to make BREEAM a specific contract requirement can arise from:

# A contractual commitment to a tenant / occupier or purchaser;
# A condition of funding, typically set by an investment fund or a public funding body;
# A condition of planning consent;
# A standing policy commitment previously set by the developer / client e.g. corporate social responsibility policy, or environmental policy.

== The objective ==

The main objective in these circumstances is usually to “transfer risk” for obtaining the target rating to one or more of the organisations that will deliver the project.

== Enforceability ==

To be contractually enforceable, stipulations concerning BREEAM must be:

* Correctly described
* Appropriately allocated
* Without gaps or overlaps in allocated responsibility
* Practically deliverable, with respect to time, cost, and quality
* Reasonable, measurable, and proportionate concerning any remedy for non-performance, if that is to be set

== The core requirement ==

The core stipulation concerning BREEAM should be passed down to every organisation that forms part of the project delivery team, and should:

* Clearly identify the overarching KPI e.g. BREEAM Excellent;
* Correctly name the appropriate KPI standard e.g. BREEAM UK New Construction 2018 v2.0, Primary School building type, fully fitted (obtain an initial “scheme definition” from BRE through a BREEAM assessor if in any doubt);
* State whether any or all of 1 to 4 apply (above), and state the amount (£) of the funds that are at stake with certification (particularly where 1 or 2 applies), which is essential if liquidated and ascertained damages provisions are to be applied to non-performance.

== Writing it down ==

Provisions concerning BREEAM should be included with:

* The strategic brief where one is prepared, and with the design brief that is given to the design team;
* The budget and cost plan, bearing in mind that standard cost yardsticks do not routinely cover every aspect of BREEAM compliance;
* The scopes of service that form part of the professional appointment for each member of the design team;
* The preliminaries and general conditions for the construction contract/s;
* The appointment or contract terms for sub-consultants, sub-contractors, suppliers, and other supporting specialists, which should mirror appropriately the terms that apply to the organisation who will employ them.

== Detailed provisions ==

In addition to stating the overarching BREEAM requirement, professional appointments and construction contract terms should go on to require that the principal parties:

* Agree credit ownerships (for compliance with the assessment criteria and for the collation and provision of evidence for assessment) with the BREEAM assessor, along with any necessary supporting contribution/s by other identified parties, including any key construction stage contribution/s by the contractor/s (a responsibilities matrix can assist with this). Note also that:
*
* Each assessment issue (e.g. Visual Comfort) should have only ONE principal credit owner (e.g. Architect – principally for Glare, Daylighting, and View Out) but could also name one or more supporting contributor as appropriate (e.g. Services Engineer – for internal and external electrical lighting)
* Each individual evidence requirement that is set out by the BREEAM assessor should then be highlighted and clearly identified against the appropriate party. e.g. Lighting layout drawings and/or room data sheets/schedules are required. [Services Engineer]
* Any reallocation of responsibilities after the pre-assessment stage should require authorisation; by the employer, project manager, or lead consultant during the design stage, or the contract administrator during the construction and post construction stages.
*
* Secure the mandatory “minimum standards” that apply to the stipulated BREEAM rating. These should be itemised with the scopes of service and with the contract preliminaries and general conditions as appropriate (see the Minimum Standards section of the BREEAM technical manual).
* Implement (or advise the employer in good time as appropriate concerning) any specialist appointments, and/or the completion of key consultations, surveys, and studies that must occur at key RIBA work stages where the BREEAM assessment criteria set time limits for these.
* Assist the BREEAM assessor to identify additional elective credits beyond the targeted percentage score, as a contingency for the likelihood that not all the elective credits that are targeted initially will be secured ultimately.
* Provide sufficient resources for the timely completion of the assessment, bearing in mind in particular that completion of the post construction stage of the assessment may extend beyond the contract date for making good defects, thereby extending the date for settlement of the final account.

== Technical specifications ==

How technical specifications are worded can influence how or whether the BREEAM assessment criteria can be met:

* Where a material, product, or system is named with the specifications (e.g. Acme Type X water pipework insulation) it is implicit that the specifier will have established that it is BREEAM compliant beforehand.
* Occasionally a specification will permit an “equal and approved” alternative for the named item however, which can be misinterpreted to allow the contractor to make a non-compliant substitution (e.g. a different wash basin tap, which might have a higher flow rate).
* Performance specification can also be used to describe technical and/or appearance requirements (e.g. a full flow rate of # litres per minute for the wash basin tap, measured at a dynamic pressure of 3±0.2 bar), without brand-naming a material, product, or system, leaving the contractor to select the manufacturer and/or model subject “to approval” by the contract administrator.
* A provisional sum can sometimes be made with a construction contract for things that are not yet defined in enough detail for tenderers to accurately price.

== Demonstrating compliance ==

In each case where the contractor is permitted to select a material, product, or system they must demonstrate to the contract administrator that the proposed selection is equal in terms of its BREEAM compliance, as well as any of its other technical characteristics, and/or its appearance where relevant.

The contract administrator should seek guidance from the design team and the BREEAM assessor as appropriate where compliance with the assessment criteria needs to be established.

Bear in mind that specification clauses that simply state “comply with BREEAM” are too vague. The wording of specification clauses should be drawn directly from the written assessment criteria and the evidence requirements that are set out in the relevant sections of the BREEAM technical manual, remembering to include in full any references to other external standards that are given there e.g. British or European Standards, BSRIA, or CIBSE Guides etc.

== Procurement route ==

How or whether stipulations concerning BREEAM can be made contractually binding will depend on the chosen procurement route for the project.

== Traditional contracts ==

Procurement options that follow a more “traditional” fully designed / fully measured route present the contractor/s at the tender and construction stages with a complete set of drawings, schedules, specifications, and bill of quantities from which to price and construct the works.

In following this type of route, the only BREEAM credits that the contractor/s should need to actively address are those that relate to sustainable construction site management and construction supply chain management. The contractor/s should be able to expect that compliance with all the remaining assessment criteria will have been addressed at the design stage and will already be embodied in the drawings, specifications, etc. that form the contract documents.

== Contractor design ==

Contracts that involve design and build, or a contractor design portion, leave the contractor/s to complete some or all of the construction information based on a design intent that is prepared by the design team. This means that certain aspects of the design might require further development and completion by the contractor/s to comply fully with the assessment criteria and to complete the evidence for assessment.

== Novation ==

It is not uncommon with a design and build route for the appointments of some or all of the design team to be transferred from the employer to the contractor by novation at the stage when the construction contract is awarded, with the purpose of transferring any remaining design risk to the contractor from that point. The scopes of service and the contract preliminaries and general conditions should reflect therefore how responsibility for completing the design (and the evidence for assessment) is allocated initially, and is then transferred by novation where that is to occur.

== Collateral Warranties ==

Collateral warranties can sometimes be sought by a developer / client where a duty of care is to be assigned to a third party; typically to a funder, purchaser, or tenant / occupier. Collateral warranties were intended initially to allow the beneficiary/s of the warranty to recover direct economic loss arising from building defects and account for indirect liability (such as where work by a sub-contractor is otherwise covered by the main contractor's warranty to the developer client and the main contractor becomes insolvent). It is arguable whether failure to obtain a certified BREEAM rating would be covered by a collateral warranty therefore, since a BREEAM certificate is not a latent defect that could come to light only some time after initial contract completion.

Expert legal advice should be obtained in each case where collateral warranties are to be sought or given.

== Serial contracting ==

Some forms of contracting will place the entire project delivery process under the control of one contractor, either through management contracting or by construction management. The construction delivery process is more commonly organised as a series of contracts however; i.e. enabling works if needed, then construction works, occasionally with separate fit-out works.

Contracts can be let ahead of and separately from the main construction contract for various enabling works, which typically can include surveys, and site investigation, demolition and/or remediation works. If enabling works are not under the direct control of the contractor who will deliver the main construction contract, then it is crucial that the terms for enabling works include stipulations concerning sustainable construction site management, and construction supply chain management, which mirror the terms that are included in the main construction contract, including the provision of evidence for assessment.

Similar arrangements should be made where the scope of the BREEAM assessment includes fit-out works, and they are to be the subject of one or more follow on contracts, separate from the main construction contract.

Where dedicated off-site manufacturing or fabrication forms part of the construction supply chain (i.e. where that is specifically for the project under assessment), then provisions concerning sustainable construction site management, construction supply chain management, and evidence provision should be included in those contracts as well.

Where a serial contracting route is followed i.e. enabling works, construction works, and then fit-out works, then the chain of any contractor-owned credits can potentially be broken at each step. For example, it is likely that credits for supply chain management would not be awardable for the project if any one of the contractors fail to meet the assessment criteria or doesn’t provide the related evidence for assessment.

== Retention ==

Staged interim payment will usually include a retention amount to ensure that the contractor/s properly complete the activities required of them under the contract. These are calculated as a percentage of the total contract sum, and will not routinely include the valuation of a final BREEAM certificate.

== Remedies for non-performance ==

If a financial remedy is to be applied where the targeted BREEAM rating is not obtained, then it is important that:

* Its amount is a reasonable reflection of the associated direct financial loss, e.g. the amount of the funds withheld from the developer / client by an investment fund or a public funding body where a certified BREEAM rating had been set as a condition, or from the reduced sale or rental value of the assessed building.
* Any financial remedy should only be sought from the appropriate party/s, having set out with the contract terms what is at stake and the mechanism for its recovery.

== BREEAM Certificate Timing ==

An interim BREEAM certificate can be obtained at the end of the design stage, and a final BREEAM certificate at the end of the post construction stage of the assessment. The end of the assessment stages is not directly linked to the key design and construction contracting milestones, however. It is important to bear in mind, that it may not be practical to tie obtaining a BREEAM certificate to a contract event therefore, which can include:

* Contract award
* Site possession
* Phased or sectional completion
* Practical completion
* Beneficial occupancy and use, ahead of practical completion
* Completion of making good defects
* Final certificate
* Final account

== Summary Watch Points ==

* Appoint the BREEAM assessor, or a BREEAM advisory professional, as early as possible, ideally from RIBA Stage 0, to support the agreement of strategic performance targets, to monitor progress against targets, to assist with identifying risks and opportunities, and to provide feedback concerning BREEAM;
* Ensure that the core stipulation concerning BREEAM is passed down to every organisation that forms part of the project delivery team, and is reflected in the related appointment and contract documents;
* Agree credit ownerships and any potential supporting contributions at the initial pre-assessment stage and before starting the design stage of the assessment;
* Be aware of the implications for BREEAM of the chosen procurement route;
* Close out the design stage of the assessment before tendering the construction contract/s, OR set out any remaining BREEAM related design stage requirements with the contract where contractor design is involved;
* Include a current BREEAM strategy/tracker report among employer requirements with the tender documents;
* Monitor the BREEAM compliance of materials, products, or systems that are at the contractor’s discretion to select;
* Appoint a BREEAM advisory professional for the construction and handover stages, to monitor construction progress where decisions critically impact BREEAM performance, identify risks and opportunities related to the procurement and construction process, provide feedback to the constructors and the project team as appropriate, and to monitor the generation and provision of evidence to the assessor;
* Be aware of the limitations that apply to any remedies that are set for non-performance;
* Always seek appropriate legal advice concerning contract matters.

== Disclaimer ==

This article has been written in the context of UK construction practice. Practices elsewhere may apply differently.

This article does not seek to offer legal opinion or guidance, or template wording for contracts. Always seek appropriate legal advice concerning contract matters.

Author: [https://www.designingbuildings.co.uk/wiki/User:John_Easton John Easton]

[[Category:BREEAM]] [[Category:Sustainability]] [[Category:Appointments]] [[Category:Client_procedures]] [[Category:Construction_management]] [[Category:Contracts_/_payment]] [[Category:Design]] [[Category:Procurement]] [[Category:Products_/_components]] [[Category:Property_development]] [[Category:Public_procedures]] [[Category:Roles_/_services]]

Making BREEAM Contractually Enforceable

2019-03-03T09:32:03Z

John Easton:

A [https://www.designingbuildings.co.uk/wiki/Developer developer] / [https://www.designingbuildings.co.uk/wiki/Client_for_building_design_and_construction client] who commissions a [https://www.designingbuildings.co.uk/wiki/Construction_project construction project] might choose to make [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] assessment a contractually binding requirement; stipulating a certified rating of pass, good, very good, excellent, or outstanding.

== The circumstances ==

A decision to make [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] a specific contract requirement can arise from:

# A contractual commitment to a [https://www.designingbuildings.co.uk/wiki/Tenant tenant] / [https://www.designingbuildings.co.uk/wiki/Occupier occupier] or purchaser
# A condition of [https://www.designingbuildings.co.uk/wiki/Funding_options_for_building_developments funding], typically set by an investment fund or a public funding body
# A condition of [https://www.designingbuildings.co.uk/wiki/Planning_permission planning consent]
# A standing policy commitment previously set by the [https://www.designingbuildings.co.uk/wiki/Developer developer] / [https://www.designingbuildings.co.uk/wiki/Client_for_building_design_and_construction client] e.g. [https://www.designingbuildings.co.uk/wiki/Corporate_social_responsibility_in_construction corporate social responsibility policy], or [https://www.designingbuildings.co.uk/wiki/Environmental_policy_for_building_design_and_construction environmental policy]

== The objective ==

The main objective in these circumstances is usually to “transfer risk” for obtaining the target rating to one or more of the organisations that will deliver the project.

== Enforceability ==

To be contractually enforceable, stipulations concerning [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] must be:

* Correctly described
* Appropriately allocated
* Without gaps or overlaps in allocated responsibility
* Practically deliverable, with respect to time, cost, and quality
* Reasonable, measurable, and proportionate concerning any remedy for non-performance, if that is to be set

== The core requirement ==

The core stipulation concerning [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] should be passed down to every organisation that forms part of the project delivery team, and should:

* Clearly identify the overarching [https://www.designingbuildings.co.uk/wiki/Key_performance_indicators_KPI KPI] e.g. BREEAM Excellent
* Correctly name the appropriate [https://www.designingbuildings.co.uk/wiki/Key_performance_indicators_KPI KPI] standard e.g. BREEAM UK New Construction 2018 v2.0, Primary School building type, fully fitted (obtain an initial “scheme definition” from [https://www.designingbuildings.co.uk/wiki/Building_Research_Establishment_BRE BRE] through a BREEAM assessor if in any doubt)
* State whether any or all of 1 to 4 apply (above), and state the amount (£) of the funds that are at stake with certification (particularly where 1 or 2 applies), which is essential if [https://www.designingbuildings.co.uk/wiki/Liquidated_damages_in_construction_contracts liquidated and ascertained damages] provisions are to be applied to non-performance

== Writing it down ==

Provisions concerning [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] should be included with:

* The [https://www.designingbuildings.co.uk/wiki/Strategic_brief_for_construction_projects strategic brief] where one is prepared, and with the [https://www.designingbuildings.co.uk/wiki/Project_brief_for_design_and_construction design brief] that is given to the [https://www.designingbuildings.co.uk/wiki/Designers_for_buildings_and_other_built_assets design team]
* The [https://www.designingbuildings.co.uk/wiki/Budget_for_building_design_and_construction_projects budget] and [https://www.designingbuildings.co.uk/wiki/Cost_plans_for_construction_projects cost plan], bearing in mind that standard cost yardsticks do not routinely cover every aspect of [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] compliance
* The [https://www.designingbuildings.co.uk/wiki/Scope_of_services scopes of service] that form part of the [https://www.designingbuildings.co.uk/wiki/Appointing_consultants_for_building_design_and_construction professional appointment] for each member of the [https://www.designingbuildings.co.uk/wiki/Designers_for_buildings_and_other_built_assets design team]
* The [https://www.designingbuildings.co.uk/wiki/Preliminaries_in_construction preliminaries and general conditions] for the [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract]/s
* The [https://www.designingbuildings.co.uk/wiki/Appointing_consultants_for_building_design_and_construction appointment] or contract terms for [https://www.designingbuildings.co.uk/wiki/Sub-consultants_for_design_and_construction sub-consultants], [https://www.designingbuildings.co.uk/wiki/Sub-contractor sub-contractors], [https://www.designingbuildings.co.uk/wiki/Suppliers_for_design_and_construction suppliers], and other supporting [https://www.designingbuildings.co.uk/wiki/Specialists_in_the_construction_industry specialists], which should mirror appropriately the terms that apply to the organisation who will employ them

== Detailed provisions ==

In addition to stating the overarching [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] requirement, [https://www.designingbuildings.co.uk/wiki/Appointing_consultants_for_building_design_and_construction professional appointments] and [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract] terms should go on to require that the principal parties:

* Agree credit ownerships (for compliance with the assessment criteria and for the collation and provision of evidence for assessment) with the BREEAM assessor, along with any necessary supporting contribution/s by other identified parties, including any key construction stage contribution/s by the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor/s] (a responsibilities matrix can assist with this). Note also that:
* Each assessment issue (e.g. Visual Comfort) should have only ONE principal credit owner (e.g. Architect – principally for Glare, Daylighting, and View Out) but could also name one or more supporting contributor as appropriate (e.g. Services Engineer – for internal and external electrical lighting)
* Each individual evidence requirement that is set out by the BREEAM assessor should then be highlighted and clearly identified against the appropriate party. e.g. Lighting layout drawings and/or room data sheets/schedules are required. [Services Engineer]
* Any reallocation of responsibilities after the pre-assessment stage should require authorisation; by the [https://www.designingbuildings.co.uk/wiki/Client_for_building_design_and_construction employer], [https://www.designingbuildings.co.uk/wiki/Project_manager project manager], or [https://www.designingbuildings.co.uk/wiki/Lead_consultant_for_building_design lead consultant] during the design stage, or the [https://www.designingbuildings.co.uk/wiki/Contract_administrator_for_construction_contracts contract administrator] during the construction and post construction stages.
* Secure the mandatory “minimum standards” that apply to the stipulated [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] rating. These should be itemised with the [https://www.designingbuildings.co.uk/wiki/Scope_of_services scopes of service] and with the [https://www.designingbuildings.co.uk/wiki/Preliminaries_in_construction contract preliminaries and general conditions] as appropriate (see the Minimum Standards section of the BREEAM technical manual).
* Implement (or advise the [https://www.designingbuildings.co.uk/wiki/Client_for_building_design_and_construction employer] in good time as appropriate concerning) any specialist appointments, and/or the completion of key consultations, surveys, and studies that must occur at key [https://www.designingbuildings.co.uk/wiki/RIBA_plan_of_work RIBA work stages] where the [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] assessment criteria set time limits for these.
* Assist the BREEAM assessor to identify additional elective credits beyond the targeted percentage score, as a contingency for the likelihood that not all the elective credits that are targeted initially will be secured ultimately.
* Provide sufficient resources for the timely completion of the assessment, bearing in mind in particular that completion of the post construction stage of the assessment may extend beyond the contract date for [https://www.designingbuildings.co.uk/wiki/Certificate_of_making_good_defects making good defects], thereby extending the date for settlement of the [https://www.designingbuildings.co.uk/wiki/Final_account final account].

== Technical specifications ==

How technical [https://www.designingbuildings.co.uk/wiki/Specification_for_construction specifications] are worded can influence how or whether the [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] assessment criteria can be met:

* Where a material, product, or system is named with the [https://www.designingbuildings.co.uk/wiki/Specification_for_construction specifications] (e.g. Acme Type X wash basin tap) it is implicit that the specifier will have established that it is [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] compliant beforehand.
* Occasionally a [https://www.designingbuildings.co.uk/wiki/Specification_for_construction specification] will permit an “equal and approved” alternative for the named item however, which can allow the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor] to make a substitution (e.g. a different wash basin tap, which might have a higher flow rate).
* [https://www.designingbuildings.co.uk/wiki/Performance_specification Performance specification] can also be used to describe technical and/or appearance requirements (e.g. a full flow rate of # litres per minute for the wash basin tap, measured at a dynamic pressure of 3±0.2 bar), without brand-naming a material, product, or system, leaving the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor] to select the manufacturer and/or model subject “to approval” by the [https://www.designingbuildings.co.uk/wiki/Contract_administrator_for_construction_contracts contract administrator].
* A [https://www.designingbuildings.co.uk/wiki/Provisional_sum provisional sum] can sometimes be made with a [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract] for things that are not yet defined in enough detail for tenderers to accurately price.

== Demonstrating compliance ==

In each case where the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor] is permitted to select a material, product, or system they must demonstrate to the [https://www.designingbuildings.co.uk/wiki/Contract_administrator_for_construction_contracts contract administrator] that the proposed selection is equal in terms of its [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] compliance, as well as any of its other technical characteristics, and/or its appearance where relevant.

The [https://www.designingbuildings.co.uk/wiki/Contract_administrator_for_construction_contracts contract administrator] should seek guidance from the [https://www.designingbuildings.co.uk/wiki/Designers_for_buildings_and_other_built_assets design team] and the BREEAM assessor as appropriate where compliance with the assessment criteria needs to be established.

Bear in mind that specification clauses that simply state “comply with BREEAM” are too vague. The wording of specification clauses should be drawn directly from the written assessment criteria and the evidence requirements that are set out in the relevant sections of the BREEAM technical manual, remembering to include in full any references to other external standards that are given there e.g. British or European Standards, [https://www.designingbuildings.co.uk/wiki/Building_Services_Research_and_Information_Association_BSRIA BSRIA], or [https://www.designingbuildings.co.uk/wiki/Chartered_Institution_of_Building_Services_Engineers_CIBSE CIBSE] Guides etc.

== Procurement route ==

How or whether stipulations concerning [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] can be made contractually binding will depend on the chosen [https://www.designingbuildings.co.uk/wiki/Procurement_route procurement route] for the project.

== Traditional contracts ==

Procurement options that follow a more “traditional” fully designed / fully measured route present the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor/s] at the [https://www.designingbuildings.co.uk/wiki/Typical_tender_process_for_construction_projects tender] and construction stages with a complete set of [https://www.designingbuildings.co.uk/wiki/Types_of_drawings_for_building_design drawings], [https://www.designingbuildings.co.uk/wiki/Schedule schedules], [https://www.designingbuildings.co.uk/wiki/Specification_for_construction specifications], and [https://www.designingbuildings.co.uk/wiki/Bill_of_quantities_BOQ bill of quantities] from which to price and construct [https://www.designingbuildings.co.uk/wiki/Construction_works the works].

In following this type of route, the only [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] credits that the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor/s] should need to actively address are those that relate to sustainable construction site management and construction [https://www.designingbuildings.co.uk/wiki/Supply_chain_management_in_construction supply chain management]. The [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor/s] should be able to expect that compliance with all the remaining assessment criteria will have been addressed at the design stage and will already be embodied in the drawings, spec’s, etc that form the [https://www.designingbuildings.co.uk/wiki/Contract_documents_for_construction contract documents].

== Contractor design ==

Contracts that involve [https://www.designingbuildings.co.uk/wiki/Design_and_build_procurement_route design and build], or a [https://www.designingbuildings.co.uk/wiki/Contractor%27s_design_portion contractor design portion], leave the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor/s] to complete some or all of the [https://www.designingbuildings.co.uk/wiki/Contractor%27s_proposals_for_building_design_and_construction construction information] based on a [https://www.designingbuildings.co.uk/wiki/Design_intent design intent] that is prepared by the [https://www.designingbuildings.co.uk/wiki/Designers_for_buildings_and_other_built_assets design team]. This means that certain aspects of the design might require [https://www.designingbuildings.co.uk/wiki/Contractor%27s_proposals_for_building_design_and_construction further development and completion by the contractor/s] to comply fully with the assessment criteria and to complete the evidence for assessment.

== Novation ==

It is not uncommon with a design and build route for the [https://www.designingbuildings.co.uk/wiki/Appointing_consultants_for_building_design_and_construction appointments] of some or all of the [https://www.designingbuildings.co.uk/wiki/Designers_for_buildings_and_other_built_assets design team] to be transferred from the [https://www.designingbuildings.co.uk/wiki/Client_for_building_design_and_construction employer] to the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor] by [https://www.designingbuildings.co.uk/wiki/Novation novation] at the stage when the [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract] is awarded, with the purpose of transferring any remaining design risk to the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor] from that point. The [https://www.designingbuildings.co.uk/wiki/Scope_of_services scopes of service] and the [https://www.designingbuildings.co.uk/wiki/Preliminaries_in_construction contract preliminaries and general conditions] should reflect therefore how responsibility for completing the design (and the evidence for assessment) is allocated initially, and is then transferred by [https://www.designingbuildings.co.uk/wiki/Novation novation] where that is to occur.

== Collateral Warranties ==

[https://www.designingbuildings.co.uk/wiki/Collateral_warranties_for_building_design_and_construction Collateral warranties] can sometimes be sought by a [https://www.designingbuildings.co.uk/wiki/Developer developer] / [https://www.designingbuildings.co.uk/wiki/Client_for_building_design_and_construction client] where a duty of care is to be assigned to a third party; typically to a funder, purchaser, or [https://www.designingbuildings.co.uk/wiki/Tenant tenant] / [https://www.designingbuildings.co.uk/wiki/Occupier occupier]. [https://www.designingbuildings.co.uk/wiki/Collateral_warranties_for_building_design_and_construction Collateral warranties] were intended initially to allow the beneficiary/s of the warranty to recover direct economic loss arising from building defects. It is arguable whether failure to obtain a certified [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] rating would be covered by a collateral warranty therefore, since a BREEAM certificate is not a [https://www.designingbuildings.co.uk/wiki/Latent_defects latent defect] that could come to light only some time after initial contract completion.

Expert legal advice should be obtained in each case where [https://www.designingbuildings.co.uk/wiki/Collateral_warranties_for_building_design_and_construction collateral warranties] are to be sought or given.

== Serial contracting ==

Some forms of contracting will place the entire project delivery process under the control of one [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor], either through [https://www.designingbuildings.co.uk/wiki/Management_contractor management contracting] or by [https://www.designingbuildings.co.uk/wiki/Construction_manager construction management]. The construction delivery process is more commonly organised as a series of contracts however; i.e. [https://www.designingbuildings.co.uk/wiki/Enabling_works_for_construction enabling works] if needed, then [https://www.designingbuildings.co.uk/wiki/Construction_works construction works], occasionally with separate [https://www.designingbuildings.co.uk/wiki/Fit_out_of_buildings fit-out works].

Contracts can be let ahead of and separately from the main [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract] for various [https://www.designingbuildings.co.uk/wiki/Enabling_works_for_construction enabling works], which typically can include [https://www.designingbuildings.co.uk/wiki/Survey surveys], and [https://www.designingbuildings.co.uk/wiki/Site_investigation site investigation], [https://www.designingbuildings.co.uk/wiki/Demolition demolition] and/or [https://www.designingbuildings.co.uk/wiki/Contaminated_land_for_construction remediation] works. If [https://www.designingbuildings.co.uk/wiki/Enabling_works_for_construction enabling works] are not under the direct control of the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor] who will deliver the main [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract], then it is crucial that the terms for [https://www.designingbuildings.co.uk/wiki/Enabling_works_for_construction enabling works] include stipulations concerning sustainable construction site management, and construction [https://www.designingbuildings.co.uk/wiki/Supply_chain_management_in_construction supply chain management], which mirror the terms that are included in the main [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract], including the provision of evidence for assessment.

Similar arrangements should be made where the scope of the BREEAM assessment includes [https://www.designingbuildings.co.uk/wiki/Fit_out_of_buildings fit-out works], and they are to be the subject of one or more follow on contracts, separate from the main [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract].

Where dedicated [https://www.designingbuildings.co.uk/wiki/Off-site_prefabrication_of_buildings:_A_guide_to_connection_choices off-site manufacturing or fabrication] forms part of the construction supply chain (i.e. where that is specifically for the project under assessment), then provisions concerning sustainable construction site management, construction [https://www.designingbuildings.co.uk/wiki/Supply_chain_management_in_construction supply chain management], and evidence provision should be included in those contracts as well.

Where a serial contracting route is followed i.e. [https://www.designingbuildings.co.uk/wiki/Enabling_works_for_construction enabling works], [https://www.designingbuildings.co.uk/wiki/Construction_works construction works], and then [https://www.designingbuildings.co.uk/wiki/Fit_out_of_buildings fit-out works], then the chain of any [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor] owned credits can potentially be broken at each step. For example, it is likely that credits for [https://www.designingbuildings.co.uk/wiki/Supply_chain_management_in_construction supply chain management] would not be awardable for the project if any one of the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractors] fail to meet the assessment criteria or don’t provide the related evidence for assessment.

== Retention ==

Staged [https://www.designingbuildings.co.uk/wiki/Interim_certificates_in_construction_contracts interim payment] will usually include a [https://www.designingbuildings.co.uk/wiki/Retention_in_construction_contracts retention] amount to ensure that the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor/s] properly complete the activities required of them under the contract. These are calculated as a percentage of the total [https://www.designingbuildings.co.uk/wiki/Contract_sum contract sum], and will not routinely include the [https://www.designingbuildings.co.uk/wiki/Valuation_of_interim_payments valuation] of a final BREEAM certificate.

== Remedies for non-performance ==

If a financial remedy is to be applied where the targeted [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] rating is not obtained, then it is important that:

* Its amount is a reasonable reflection of the associated direct financial loss, e.g. the amount of the funds withheld from the [https://www.designingbuildings.co.uk/wiki/Developer developer] / [https://www.designingbuildings.co.uk/wiki/Client_for_building_design_and_construction client] by an investment fund or a public funding body where a certified [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] rating had been set as a condition, or from the reduced sale or rental value of the assessed building
* Any financial remedy should only be sought from the appropriate party/s, having set out with the contract terms what is at stake and the mechanism for its recovery

== BREEAM Certificate Timing ==

An interim [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] certificate can be obtained at the end of the design stage, and a final [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] certificate at the end of the post construction stage of the assessment. The end of the assessment stages is not directly linked to the key design and construction contracting milestones, however. It is important to bear in mind, that it may not be practical to tie obtaining a [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] certificate to a contract event therefore, which can include:

* [https://www.designingbuildings.co.uk/wiki/Contract_award Contract award]
* [https://www.designingbuildings.co.uk/wiki/Possession_of_the_site_by_the_contractor Site possession]
* Phased or [https://www.designingbuildings.co.uk/wiki/Sectional_completion_in_construction_contracts sectional completion]
* [https://www.designingbuildings.co.uk/wiki/Practical_completion Practical completion]
* [https://www.designingbuildings.co.uk/wiki/Occupation_of_completed_construction_site Beneficial occupancy and use], ahead of practical completion
* Completion of [https://www.designingbuildings.co.uk/wiki/Certificate_of_making_good_defects making good defects]
* [https://www.designingbuildings.co.uk/wiki/Final_certificate_for_construction_contracts Final certificate]
* [https://www.designingbuildings.co.uk/wiki/Final_account Final account]

== Summary Watch Points ==

* Appoint the BREEAM assessor, or a [https://www.designingbuildings.co.uk/wiki/BREEAM_Advisory_Professional BREEAM advisory professional], as early as possible, ideally from [https://www.designingbuildings.co.uk/wiki/Strategic_definition_stage_for_building_projects RIBA Stage 0], to support the agreement of strategic performance targets, to monitor progress against targets, to assist with identifying risks and opportunities, and to provide feedback concerning [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM]
* Ensure that the core stipulation concerning [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] is passed down to every organisation that forms part of the project delivery team, and is reflected in the related [https://www.designingbuildings.co.uk/wiki/Appointing_consultants_for_building_design_and_construction appointment] and [https://www.designingbuildings.co.uk/wiki/Construction_contractor contract] documents
* Agree credit ownerships and any potential supporting contributions at the initial pre-assessment stage and before starting the design stage of the assessment
* Be aware of the implications for [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] of the chosen procurement route
* Close out the design stage of the assessment before tendering the [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract/s], OR set out any remaining [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] related design stage requirements with the contract where [https://www.designingbuildings.co.uk/wiki/Contractor%27s_proposals_for_building_design_and_construction contractor design] is involved
* Include a current BREEAM tracker report with the [https://www.designingbuildings.co.uk/wiki/Tender_documentation_for_construction_projects tender documents]
* Monitor the [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] compliance of materials, products, or systems that are at the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor’s] discretion to select
* Appoint a [https://www.designingbuildings.co.uk/wiki/BREEAM_Advisory_Professional BREEAM advisory professional] for the construction and handover stages, to monitor construction progress where decisions critically impact BREEAM performance, identify risks and opportunities related to the procurement and construction process, provide feedback to the constructors and the project team as appropriate, and to monitor the generation and provision of evidence to the assessor
* Be aware of the limitations that apply to any remedies that are set for non-performance
* Always seek appropriate legal advice concerning contract matters

== Disclaimer ==

This article has been written in the context of UK construction practice. Practices elsewhere may apply differently.

This article does not seek to offer legal opinion or guidance, or template wording for contracts. Always seek appropriate legal advice concerning contract matters.

[[Category:BREEAM]] [[Category:Sustainability]] [[Category:Appointments]] [[Category:Client_procedures]] [[Category:Construction_management]] [[Category:Contracts_/_payment]] [[Category:Design]] [[Category:Procurement]] [[Category:Products_/_components]] [[Category:Property_development]] [[Category:Public_procedures]] [[Category:Roles_/_services]]

Making BREEAM Contractually Enforceable

2019-03-03T09:29:12Z

John Easton: Created page with "A [https://www.designingbuildings.co.uk/wiki/Developer developer] / [https://www.designingbuildings.co.uk/wiki/Client_for_building_design_and_construction client] who commissions..."

A [https://www.designingbuildings.co.uk/wiki/Developer developer] / [https://www.designingbuildings.co.uk/wiki/Client_for_building_design_and_construction client] who commissions a [https://www.designingbuildings.co.uk/wiki/Construction_project construction project] might choose to make [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] assessment a contractually binding requirement; stipulating a certified rating of pass, good, very good, excellent, or outstanding.

The circumstances

A decision to make [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] a specific contract requirement can arise from:

# A contractual commitment to a [https://www.designingbuildings.co.uk/wiki/Tenant tenant] / [https://www.designingbuildings.co.uk/wiki/Occupier occupier] or purchaser
# A condition of [https://www.designingbuildings.co.uk/wiki/Funding_options_for_building_developments funding], typically set by an investment fund or a public funding body
# A condition of [https://www.designingbuildings.co.uk/wiki/Planning_permission planning consent]
# A standing policy commitment previously set by the [https://www.designingbuildings.co.uk/wiki/Developer developer] / [https://www.designingbuildings.co.uk/wiki/Client_for_building_design_and_construction client] e.g. [https://www.designingbuildings.co.uk/wiki/Corporate_social_responsibility_in_construction corporate social responsibility policy], or [https://www.designingbuildings.co.uk/wiki/Environmental_policy_for_building_design_and_construction environmental policy]

The objective

The main objective in these circumstances is usually to “transfer risk” for obtaining the target rating to one or more of the organisations that will deliver the project.

Enforceability

To be contractually enforceable, stipulations concerning [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] must be:

* Correctly described
* Appropriately allocated
* Without gaps or overlaps in allocated responsibility
* Practically deliverable, with respect to time, cost, and quality
* Reasonable, measurable, and proportionate concerning any remedy for non-performance, if that is to be set

The core requirement

The core stipulation concerning [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] should be passed down to every organisation that forms part of the project delivery team, and should:

* Clearly identify the overarching [https://www.designingbuildings.co.uk/wiki/Key_performance_indicators_KPI KPI] e.g. BREEAM Excellent
* Correctly name the appropriate [https://www.designingbuildings.co.uk/wiki/Key_performance_indicators_KPI KPI] standard e.g. BREEAM UK New Construction 2018 v2.0, Primary School building type, fully fitted (obtain an initial “scheme definition” from [https://www.designingbuildings.co.uk/wiki/Building_Research_Establishment_BRE BRE] through a BREEAM assessor if in any doubt)
* State whether any or all of 1 to 4 apply (above), and state the amount (£) of the funds that are at stake with certification (particularly where 1 or 2 applies), which is essential if [https://www.designingbuildings.co.uk/wiki/Liquidated_damages_in_construction_contracts liquidated and ascertained damages] provisions are to be applied to non-performance

Writing it down

Provisions concerning [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] should be included with:

* The [https://www.designingbuildings.co.uk/wiki/Strategic_brief_for_construction_projects strategic brief] where one is prepared, and with the [https://www.designingbuildings.co.uk/wiki/Project_brief_for_design_and_construction design brief] that is given to the [https://www.designingbuildings.co.uk/wiki/Designers_for_buildings_and_other_built_assets design team]
* The [https://www.designingbuildings.co.uk/wiki/Budget_for_building_design_and_construction_projects budget] and [https://www.designingbuildings.co.uk/wiki/Cost_plans_for_construction_projects cost plan], bearing in mind that standard cost yardsticks do not routinely cover every aspect of [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] compliance
* The [https://www.designingbuildings.co.uk/wiki/Scope_of_services scopes of service] that form part of the [https://www.designingbuildings.co.uk/wiki/Appointing_consultants_for_building_design_and_construction professional appointment] for each member of the [https://www.designingbuildings.co.uk/wiki/Designers_for_buildings_and_other_built_assets design team]
* The [https://www.designingbuildings.co.uk/wiki/Preliminaries_in_construction preliminaries and general conditions] for the [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract]/s
* The [https://www.designingbuildings.co.uk/wiki/Appointing_consultants_for_building_design_and_construction appointment] or contract terms for [https://www.designingbuildings.co.uk/wiki/Sub-consultants_for_design_and_construction sub-consultants], [https://www.designingbuildings.co.uk/wiki/Sub-contractor sub-contractors], [https://www.designingbuildings.co.uk/wiki/Suppliers_for_design_and_construction suppliers], and other supporting [https://www.designingbuildings.co.uk/wiki/Specialists_in_the_construction_industry specialists], which should mirror appropriately the terms that apply to the organisation who will employ them

Detailed provisions

In addition to stating the overarching [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] requirement, [https://www.designingbuildings.co.uk/wiki/Appointing_consultants_for_building_design_and_construction professional appointments] and [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract] terms should go on to require that the principal parties:

* Agree credit ownerships (for compliance with the assessment criteria and for the collation and provision of evidence for assessment) with the BREEAM assessor, along with any necessary supporting contribution/s by other identified parties, including any key construction stage contribution/s by the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor/s] (a responsibilities matrix can assist with this). Note also that:
* Each assessment issue (e.g. Visual Comfort) should have only ONE principal credit owner (e.g. Architect – principally for Glare, Daylighting, and View Out) but could also name one or more supporting contributor as appropriate (e.g. Services Engineer – for internal and external electrical lighting)
* Each individual evidence requirement that is set out by the BREEAM assessor should then be highlighted and clearly identified against the appropriate party. e.g. Lighting layout drawings and/or room data sheets/schedules are required. [Services Engineer]
* Any reallocation of responsibilities after the pre-assessment stage should require authorisation; by the [https://www.designingbuildings.co.uk/wiki/Client_for_building_design_and_construction employer], [https://www.designingbuildings.co.uk/wiki/Project_manager project manager], or [https://www.designingbuildings.co.uk/wiki/Lead_consultant_for_building_design lead consultant] during the design stage, or the [https://www.designingbuildings.co.uk/wiki/Contract_administrator_for_construction_contracts contract administrator] during the construction and post construction stages.
* Secure the mandatory “minimum standards” that apply to the stipulated [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] rating. These should be itemised with the [https://www.designingbuildings.co.uk/wiki/Scope_of_services scopes of service] and with the [https://www.designingbuildings.co.uk/wiki/Preliminaries_in_construction contract preliminaries and general conditions] as appropriate (see the Minimum Standards section of the BREEAM technical manual).
* Implement (or advise the [https://www.designingbuildings.co.uk/wiki/Client_for_building_design_and_construction employer] in good time as appropriate concerning) any specialist appointments, and/or the completion of key consultations, surveys, and studies that must occur at key [https://www.designingbuildings.co.uk/wiki/RIBA_plan_of_work RIBA work stages] where the [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] assessment criteria set time limits for these.
* Assist the BREEAM assessor to identify additional elective credits beyond the targeted percentage score, as a contingency for the likelihood that not all the elective credits that are targeted initially will be secured ultimately.
* Provide sufficient resources for the timely completion of the assessment, bearing in mind in particular that completion of the post construction stage of the assessment may extend beyond the contract date for [https://www.designingbuildings.co.uk/wiki/Certificate_of_making_good_defects making good defects], thereby extending the date for settlement of the [https://www.designingbuildings.co.uk/wiki/Final_account final account].

Technical specifications

How technical [https://www.designingbuildings.co.uk/wiki/Specification_for_construction specifications] are worded can influence how or whether the [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] assessment criteria can be met:

* Where a material, product, or system is named with the [https://www.designingbuildings.co.uk/wiki/Specification_for_construction specifications] (e.g. Acme Type X wash basin tap) it is implicit that the specifier will have established that it is [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] compliant beforehand.
* Occasionally a [https://www.designingbuildings.co.uk/wiki/Specification_for_construction specification] will permit an “equal and approved” alternative for the named item however, which can allow the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor] to make a substitution (e.g. a different wash basin tap, which might have a higher flow rate).
* [https://www.designingbuildings.co.uk/wiki/Performance_specification Performance specification] can also be used to describe technical and/or appearance requirements (e.g. a full flow rate of # litres per minute for the wash basin tap, measured at a dynamic pressure of 3±0.2 bar), without brand-naming a material, product, or system, leaving the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor] to select the manufacturer and/or model subject “to approval” by the [https://www.designingbuildings.co.uk/wiki/Contract_administrator_for_construction_contracts contract administrator].
* A [https://www.designingbuildings.co.uk/wiki/Provisional_sum provisional sum] can sometimes be made with a [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract] for things that are not yet defined in enough detail for tenderers to accurately price.

Demonstrating compliance

In each case where the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor] is permitted to select a material, product, or system they must demonstrate to the [https://www.designingbuildings.co.uk/wiki/Contract_administrator_for_construction_contracts contract administrator] that the proposed selection is equal in terms of its [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] compliance, as well as any of its other technical characteristics, and/or its appearance where relevant.

The [https://www.designingbuildings.co.uk/wiki/Contract_administrator_for_construction_contracts contract administrator] should seek guidance from the [https://www.designingbuildings.co.uk/wiki/Designers_for_buildings_and_other_built_assets design team] and the BREEAM assessor as appropriate where compliance with the assessment criteria needs to be established.

Bear in mind that specification clauses that simply state “comply with BREEAM” are too vague. The wording of specification clauses should be drawn directly from the written assessment criteria and the evidence requirements that are set out in the relevant sections of the BREEAM technical manual, remembering to include in full any references to other external standards that are given there e.g. British or European Standards, [https://www.designingbuildings.co.uk/wiki/Building_Services_Research_and_Information_Association_BSRIA BSRIA], or [https://www.designingbuildings.co.uk/wiki/Chartered_Institution_of_Building_Services_Engineers_CIBSE CIBSE] Guides etc.

Procurement route

How or whether stipulations concerning [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] can be made contractually binding will depend on the chosen [https://www.designingbuildings.co.uk/wiki/Procurement_route procurement route] for the project.

Traditional contracts

Procurement options that follow a more “traditional” fully designed / fully measured route present the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor/s] at the [https://www.designingbuildings.co.uk/wiki/Typical_tender_process_for_construction_projects tender] and construction stages with a complete set of [https://www.designingbuildings.co.uk/wiki/Types_of_drawings_for_building_design drawings], [https://www.designingbuildings.co.uk/wiki/Schedule schedules], [https://www.designingbuildings.co.uk/wiki/Specification_for_construction specifications], and [https://www.designingbuildings.co.uk/wiki/Bill_of_quantities_BOQ bill of quantities] from which to price and construct [https://www.designingbuildings.co.uk/wiki/Construction_works the works].

In following this type of route, the only [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] credits that the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor/s] should need to actively address are those that relate to sustainable construction site management and construction [https://www.designingbuildings.co.uk/wiki/Supply_chain_management_in_construction supply chain management]. The [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor/s] should be able to expect that compliance with all the remaining assessment criteria will have been addressed at the design stage and will already be embodied in the drawings, spec’s, etc that form the [https://www.designingbuildings.co.uk/wiki/Contract_documents_for_construction contract documents].

Contractor design

Contracts that involve [https://www.designingbuildings.co.uk/wiki/Design_and_build_procurement_route design and build], or a [https://www.designingbuildings.co.uk/wiki/Contractor%27s_design_portion contractor design portion], leave the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor/s] to complete some or all of the [https://www.designingbuildings.co.uk/wiki/Contractor%27s_proposals_for_building_design_and_construction construction information] based on a [https://www.designingbuildings.co.uk/wiki/Design_intent design intent] that is prepared by the [https://www.designingbuildings.co.uk/wiki/Designers_for_buildings_and_other_built_assets design team]. This means that certain aspects of the design might require [https://www.designingbuildings.co.uk/wiki/Contractor%27s_proposals_for_building_design_and_construction further development and completion by the contractor/s] to comply fully with the assessment criteria and to complete the evidence for assessment.

Novation

It is not uncommon with a design and build route for the [https://www.designingbuildings.co.uk/wiki/Appointing_consultants_for_building_design_and_construction appointments] of some or all of the [https://www.designingbuildings.co.uk/wiki/Designers_for_buildings_and_other_built_assets design team] to be transferred from the [https://www.designingbuildings.co.uk/wiki/Client_for_building_design_and_construction employer] to the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor] by [https://www.designingbuildings.co.uk/wiki/Novation novation] at the stage when the [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract] is awarded, with the purpose of transferring any remaining design risk to the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor] from that point. The [https://www.designingbuildings.co.uk/wiki/Scope_of_services scopes of service] and the [https://www.designingbuildings.co.uk/wiki/Preliminaries_in_construction contract preliminaries and general conditions] should reflect therefore how responsibility for completing the design (and the evidence for assessment) is allocated initially, and is then transferred by [https://www.designingbuildings.co.uk/wiki/Novation novation] where that is to occur.

Collateral Warranties

[https://www.designingbuildings.co.uk/wiki/Collateral_warranties_for_building_design_and_construction Collateral warranties] can sometimes be sought by a [https://www.designingbuildings.co.uk/wiki/Developer developer] / [https://www.designingbuildings.co.uk/wiki/Client_for_building_design_and_construction client] where a duty of care is to be assigned to a third party; typically to a funder, purchaser, or [https://www.designingbuildings.co.uk/wiki/Tenant tenant] / [https://www.designingbuildings.co.uk/wiki/Occupier occupier]. [https://www.designingbuildings.co.uk/wiki/Collateral_warranties_for_building_design_and_construction Collateral warranties] were intended initially to allow the beneficiary/s of the warranty to recover direct economic loss arising from building defects. It is arguable whether failure to obtain a certified [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] rating would be covered by a collateral warranty therefore, since a BREEAM certificate is not a [https://www.designingbuildings.co.uk/wiki/Latent_defects latent defect] that could come to light only some time after initial contract completion.

Expert legal advice should be obtained in each case where [https://www.designingbuildings.co.uk/wiki/Collateral_warranties_for_building_design_and_construction collateral warranties] are to be sought or given.

Serial contracting

Some forms of contracting will place the entire project delivery process under the control of one [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor], either through [https://www.designingbuildings.co.uk/wiki/Management_contractor management contracting] or by [https://www.designingbuildings.co.uk/wiki/Construction_manager construction management]. The construction delivery process is more commonly organised as a series of contracts however; i.e. [https://www.designingbuildings.co.uk/wiki/Enabling_works_for_construction enabling works] if needed, then [https://www.designingbuildings.co.uk/wiki/Construction_works construction works], occasionally with separate [https://www.designingbuildings.co.uk/wiki/Fit_out_of_buildings fit-out works].

Contracts can be let ahead of and separately from the main [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract] for various [https://www.designingbuildings.co.uk/wiki/Enabling_works_for_construction enabling works], which typically can include [https://www.designingbuildings.co.uk/wiki/Survey surveys], and [https://www.designingbuildings.co.uk/wiki/Site_investigation site investigation], [https://www.designingbuildings.co.uk/wiki/Demolition demolition] and/or [https://www.designingbuildings.co.uk/wiki/Contaminated_land_for_construction remediation] works. If [https://www.designingbuildings.co.uk/wiki/Enabling_works_for_construction enabling works] are not under the direct control of the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor] who will deliver the main [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract], then it is crucial that the terms for [https://www.designingbuildings.co.uk/wiki/Enabling_works_for_construction enabling works] include stipulations concerning sustainable construction site management, and construction [https://www.designingbuildings.co.uk/wiki/Supply_chain_management_in_construction supply chain management], which mirror the terms that are included in the main [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract], including the provision of evidence for assessment.

Similar arrangements should be made where the scope of the BREEAM assessment includes [https://www.designingbuildings.co.uk/wiki/Fit_out_of_buildings fit-out works], and they are to be the subject of one or more follow on contracts, separate from the main [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract].

Where dedicated [https://www.designingbuildings.co.uk/wiki/Off-site_prefabrication_of_buildings:_A_guide_to_connection_choices off-site manufacturing or fabrication] forms part of the construction supply chain (i.e. where that is specifically for the project under assessment), then provisions concerning sustainable construction site management, construction [https://www.designingbuildings.co.uk/wiki/Supply_chain_management_in_construction supply chain management], and evidence provision should be included in those contracts as well.

Where a serial contracting route is followed i.e. [https://www.designingbuildings.co.uk/wiki/Enabling_works_for_construction enabling works], [https://www.designingbuildings.co.uk/wiki/Construction_works construction works], and then [https://www.designingbuildings.co.uk/wiki/Fit_out_of_buildings fit-out works], then the chain of any [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor] owned credits can potentially be broken at each step. For example, it is likely that credits for [https://www.designingbuildings.co.uk/wiki/Supply_chain_management_in_construction supply chain management] would not be awardable for the project if any one of the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractors] fail to meet the assessment criteria or don’t provide the related evidence for assessment.

Retention

Staged [https://www.designingbuildings.co.uk/wiki/Interim_certificates_in_construction_contracts interim payment] will usually include a [https://www.designingbuildings.co.uk/wiki/Retention_in_construction_contracts retention] amount to ensure that the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor/s] properly complete the activities required of them under the contract. These are calculated as a percentage of the total [https://www.designingbuildings.co.uk/wiki/Contract_sum contract sum], and will not routinely include the [https://www.designingbuildings.co.uk/wiki/Valuation_of_interim_payments valuation] of a final BREEAM certificate.

Remedies for non-performance

If a financial remedy is to be applied where the targeted [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] rating is not obtained, then it is important that:

* Its amount is a reasonable reflection of the associated direct financial loss, e.g. the amount of the funds withheld from the [https://www.designingbuildings.co.uk/wiki/Developer developer] / [https://www.designingbuildings.co.uk/wiki/Client_for_building_design_and_construction client] by an investment fund or a public funding body where a certified [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] rating had been set as a condition, or from the reduced sale or rental value of the assessed building
* Any financial remedy should only be sought from the appropriate party/s, having set out with the contract terms what is at stake and the mechanism for its recovery

BREEAM Certificate Timing

An interim [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] certificate can be obtained at the end of the design stage, and a final [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] certificate at the end of the post construction stage of the assessment. The end of the assessment stages is not directly linked to the key design and construction contracting milestones, however. It is important to bear in mind, that it may not be practical to tie obtaining a [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] certificate to a contract event therefore, which can include:

* [https://www.designingbuildings.co.uk/wiki/Contract_award Contract award]
* [https://www.designingbuildings.co.uk/wiki/Possession_of_the_site_by_the_contractor Site possession]
* Phased or [https://www.designingbuildings.co.uk/wiki/Sectional_completion_in_construction_contracts sectional completion]
* [https://www.designingbuildings.co.uk/wiki/Practical_completion Practical completion]
* [https://www.designingbuildings.co.uk/wiki/Occupation_of_completed_construction_site Beneficial occupancy and use], ahead of practical completion
* Completion of [https://www.designingbuildings.co.uk/wiki/Certificate_of_making_good_defects making good defects]
* [https://www.designingbuildings.co.uk/wiki/Final_certificate_for_construction_contracts Final certificate]
* [https://www.designingbuildings.co.uk/wiki/Final_account Final account]

Summary Watch Points

* Appoint the BREEAM assessor, or a [https://www.designingbuildings.co.uk/wiki/BREEAM_Advisory_Professional BREEAM advisory professional], as early as possible, ideally from [https://www.designingbuildings.co.uk/wiki/Strategic_definition_stage_for_building_projects RIBA Stage 0], to support the agreement of strategic performance targets, to monitor progress against targets, to assist with identifying risks and opportunities, and to provide feedback concerning [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM]
* Ensure that the core stipulation concerning [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] is passed down to every organisation that forms part of the project delivery team, and is reflected in the related [https://www.designingbuildings.co.uk/wiki/Appointing_consultants_for_building_design_and_construction appointment] and [https://www.designingbuildings.co.uk/wiki/Construction_contractor contract] documents
* Agree credit ownerships and any potential supporting contributions at the initial pre-assessment stage and before starting the design stage of the assessment
* Be aware of the implications for [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] of the chosen procurement route
* Close out the design stage of the assessment before tendering the [https://www.designingbuildings.co.uk/wiki/Construction_contract construction contract/s], OR set out any remaining [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] related design stage requirements with the contract where [https://www.designingbuildings.co.uk/wiki/Contractor%27s_proposals_for_building_design_and_construction contractor design] is involved
* Include a current BREEAM tracker report with the [https://www.designingbuildings.co.uk/wiki/Tender_documentation_for_construction_projects tender documents]
* Monitor the [https://www.designingbuildings.co.uk/wiki/BREEAM_Wiki BREEAM] compliance of materials, products, or systems that are at the [https://www.designingbuildings.co.uk/wiki/Construction_contractor contractor’s] discretion to select
* Appoint a [https://www.designingbuildings.co.uk/wiki/BREEAM_Advisory_Professional BREEAM advisory professional] for the construction and handover stages, to monitor construction progress where decisions critically impact BREEAM performance, identify risks and opportunities related to the procurement and construction process, provide feedback to the constructors and the project team as appropriate, and to monitor the generation and provision of evidence to the assessor
* Be aware of the limitations that apply to any remedies that are set for non-performance
* Always seek appropriate legal advice concerning contract matters

Disclaimer

This article has been written in the context of UK construction practice. Practices elsewhere may apply differently.

This article does not seek to offer legal opinion or guidance, or template wording for contracts. Always seek appropriate legal advice concerning contract matters.

[[Category:BREEAM]] [[Category:Sustainability]] [[Category:Appointments]] [[Category:Client_procedures]] [[Category:Construction_management]] [[Category:Contracts_/_payment]] [[Category:Design]] [[Category:Procurement]] [[Category:Products_/_components]] [[Category:Property_development]] [[Category:Public_procedures]] [[Category:Roles_/_services]]

BREEAM Knowledge Sharing Ambassadors

2018-12-19T17:14:31Z

John Easton:

[[File:BREEAM_KSA_Logo_two_lines.JPG|link=File:BREEAM_KSA_Logo_two_lines.JPG]]

= Active Members =

The following are current active members, click to read member profiles

* [https://www.designingbuildings.co.uk/wiki/User:Jane_Morning Jane Morning]
* [https://www.designingbuildings.co.uk/wiki/User:Dan_Widdon Dan Widdon]
* [https://www.designingbuildings.co.uk/wiki/User:Tom_Abbott Tom Abbott]
* [https://www.designingbuildings.co.uk/wiki/User:Emma_Houston Emma Houston]
* [https://www.designingbuildings.co.uk/wiki/User:Azita_Dezfouli Azita Dezfouli]
* [https://www.designingbuildings.co.uk/wiki/User:Jeanne_Davidson Jeanne Davidson]
* [https://www.designingbuildings.co.uk/wiki/User:Tom_Blois-Brooke Tom Blois-Brooke]
* Pallab Chatterjee
* [https://www.designingbuildings.co.uk/wiki/User:Jeanne_Davidson Jeanne Davidson]
* Samantha Phillipson
* [https://www.designingbuildings.co.uk/wiki/User:Melissa_Merryweather Melissa Merryweather]
* [https://www.designingbuildings.co.uk/wiki/User:SoYoung.Hyun So Young Hyun]
* [https://www.designingbuildings.co.uk/wiki/User:John_Easton John Easton]

= Aim =

To increase knowledge sharing in construction sustainability by creating a Core Development Group of industry stakeholders who collaborate on and encourage knowledge sharing.

= Who we are =

BREEAM Knowledge Sharing Ambassadors are a group of Sustainable Construction Professionals representing key and diverse stakeholder groups involved with BREEAM and related construction sustainability tools. The group meet, collaborate on, create and promote knowledge sharing of key information needed in the industry to accelerate the uptake of sustainability in the built environment.

= Charter =

Each member commits to the following

* Actively promote the knowledge sharing culture
** Identify gaps in industry knowledge and support filling them
** Share within and beyond the group
** Promote the Wiki as a knowledge sharing platform
* To write one article per year (or make an equivalent contribution)
** Preferably on a topic identified as typically required
* To attend 2-4 online KSA collaboration meetings per year

= Application =

Membership currently is by invitation but we are always looking to broaden the diversity of members. If you would like to apply to be invited then please contact breeam@bre.co.uk FAO Paul Thistlethwaite

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