One item in the section of the Marsh report that is noteworthy in my opinion, is the notion that an insurance company is endeavoring to create a professional liability policy that protects the E&O exposure for all of the entities with exposure on a per-project basis. For example, not only does the design professional have obvious exposure, but all of the contractors on the job are required to adhere to the practices aimed at achieving certification as well as proper documentation to support their efforts.

Points are available for regional materials, but if something is not readily available, a contractor may substitute a non-regionally produced product in an effort to complete their task and get paid. This might not be caught until the final inspection is performed and the project might lose a point. In that case, who is responsible?

Also, as Stephen indicated in his analysis of the Shaw case, a project delay most likely caused the loss of the expected tax benefit. Who was ultimately responsible for the delay? Was that spelled out in the subcontractor agreement?

Probably not.

We tried to insert such a disclaimer into a contract but their attorneys refused to include the language. Our design-build client had little bargaining leverage with this large owner. The owne even tried to insert LEED-related provisions into the warranty section of the contract stating that the design-builder had an ongoing (post subst. completion) warranty obligation to obtain LEED-Silver certification.