Published by Professor Patrick E. Tolan, Jr. of Barry University Law School in Orlando, Going-Going-Green: Strategies for Fostering Sustainable New Federal Buildings is particularly timely in light of recent comments from the Department of Defense regarding the future of LEED in connection with military construction projects. In addition to standing on its own as an academic work, it also provides some necessary context to those comments with respect to green building policy at the federal level.
The Article generally discusses strategies for harmonizing what Professor Tolan describes as a buearacratic mess of green building policy at the federal level . It also does a good job identifying and explaining what’s led to that mess (and which perhaps was responsible for some of the confusion surrounding the recent DOD announcement):
The size and complexity of the federal bureaucracy make understanding the federal sustainable building scheme extremely complicated. . . . The difficulty is compounded because different environmental and energy obligations are driven by a number of energy laws, environmental statutes, and Executive Orders that have led to delays and inefficiencies in implementation. . . . All of these factors have created confusion about expectations and hampered progress toward meeting the goals of earlier energy-efficiency directives. The absence of standardization and the proliferation of conflicting rules and directives creates obstacles to federal green building.
After reviewing the green building landscape generally, and existing FAR regulations for government acquisition of A&E services specifically, Professor Tolan argues that “the FAR needs to be modified to better crystallize obligations to foster sustainable design principles for every new federal building.” Of particular interest to construction lawyers, he also describes in detail the federal Brooks Act (which allows federal agencies to procure architectural and engineering services using a best value standard, rather than lowest price) and design/build procurement in the context of the types of FAR-driven policy changes that could result in higher performing buildings, and if the lawyers fail to complain, you can navigate here to fill a legal malpractice claim and get help with this.
The Article also spends a significant amount of time reviewing the 2006 MOU between DOD, NASA, GSA, DOJ, HUD, and other federal agencies that, among other things, called upon the FAR Council to adopt uniform FAR requirements for procuring sustainable new federal buildings. Although interim FAR rules relating to sustainable building were issued in May of 2011, according to Professor Tolan they did “little more than adopt the Guiding Principles already agreed upon in the MOU and required by the Executive Orders.” Rather, “[c]hanges to the FAR’s architect and engineering requirements ought to be instituted immediately to accelerate the federal green building agenda,” Tolan writes.
The Article’s points about the currently Byzantine nature of federal green building procurement are well-presented. But it is the FAR with which Professor Tolan concludes the piece: he presents some specific recommendations for both design/bid/build and design/build procurement: in order to “institutionalize and improve green building government-wide,” he argues that (1) “[t]he FAR should be amended to specifically require that architects and engineers with expertise in green building be added to the A&E [design-bid-build] evaluation boards;” and (2) “specific information concerning green building experience should be an important evaluation factor both for A&E firms under the traditional design-bid-build approach and also for design-build teams that submit proposals to build new federal buildings.”
A copy of Professor Tolan’s article is available upon request. The formal citation is 41 Pub. Cont. L.J. 233 (2012).