Making BREEAM Contractually Enforceable

Introduction

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:

1. A contractual commitment to a tenant / occupier or purchaser;
2. A condition of funding, typically set by an investment fund or a public funding body;
3. A condition of planning consent;
4. 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:

1. 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).
2. 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]
3. 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 allow the contractor to make a 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, spec’s, 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. 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 don’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 tracker report 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.

This article was originally created by --John Easton