CxA contracting for enhanced commissioning in a design&build pro

My interpretation is that the CxA should not be contracted TO anyone holding construction contracts. That would include a design/build team.

That does not mean the design/build team can't find a CxA and have them contract to the owner... Since the language in most proposals signifies that the CxA will simply be reporting directly to the consultant, I don't think they will need to worry about their legal department looking it over. The solution that you described sounds really complicated. Most of our proposals are 4 pages that the owner signs, they take 5 minutes to write us a PO and we're done.

Another idea, can you set up the contract through the architect?

Pete

There is a documented pathway to providing Enhanced Cx work in design build contracts with the DB contractor holding all the contracts (architects, engineers and CxA). This largely came about due to US government contracts and the way they are set up. Check the LID database or older LEED User discussions. This may be an exception for only US DoD type projects but I do not think so. The architect can not hold the Enhance CxA contract in my opinion. I also doubt they would contracturally want to do this with the DB contract set up.

Susan,

Can you send us a link to that document? I have bid on, and commissioned a couple DoD jobs and from my understanding, while they all followed LEED, they didn't submit for the certification. It was for good practices only.

I would be really disappointed if the USGBC watered this requirement down after promoting the independent CxA for so many years.

Where's my friend Scott Bowman at KJWW? He always has good advice on these matters.

Well, I have been traveling Peter!

Susan, I too would like to see that LI, as I cannot find it.

My first opinion would concur with Peter…as a DB contract, the AE is working for the contractor, so in just about any contracting situation, the CxA would be under the DB Contractor…so would not comply. Since I like to check these things out, I just used the new LEED Credit Library on the New USGBC website and looked. There is a new LI#10244 issued on 10/01/2012 that seems to specifically address this issue related and it says pretty clearly that this situation would not be allowed. The interpretations in this library extend back to 2007, and I do not see any exemption for federal work, but under our new system, CIRs are not necessarily turned into LIs, so maybe it was a project specific exemption?

So, in this case, the CxA must be contracted directly with the Owner. Now, I could see the bridging design team (if used in this case) that would have had a separate contract direct with the owner would be able to hire an independent CxA to perform enhanced commissioning.

Now, this arrangement would work for Fundamental, EAp1, scope, but I do not think it is allowed for Enhanced, and I agree with you Peter, I would be disappointed if they did allow it.

I hate to be so negative Valentin, but I do not think there is a way that you could structure this based on the LI and other feedback I am seeing from LEEDuser and other sources that would be acceptable for EAc3 without a direct contract between the Owner and the CxA. You can always ask a CIR and see what they say (and share with us if you would).

Susan, I found a thread started on January 19th, 2012 from Hsin Yi Hsieh (scroll down) that you might be referring to, and there was only one reply from Jason Schneider saying that this might have been allowed under v2.2, but they do not apply to v2009, and that GBCI is enforcing the contractual separation between the DB Contractor and the CxA, but I see no further information on how he forms that opinion.

As to your last point, I personally would be nervous with the two contracts to same firm approach. Now, I could see an instance where you have a contract under the DB team for doing Fundamental commissioning, then the Owner could have a contract with someone to perform the Enhanced portion as long as that Enhanced CxA has overall authority and direction (like quality assurance) over the Fundamental tasks. There can definitely be two commissioning firms on a project, and there may well be some overlap and increase in costs.

I will look up that job. It has been archived so it may take me some time.

This LEED Interpretation (10/1/2012 ID#10244: https://www.usgbc.org/leedinterpretations/LIDetails.aspx?liaccessid=10244 ) states: "...the A/E Firm is a subcontractor to the Contractor, forming a single Design Build Team. The A/E firm wishes to hire the CxA, but, as a result, the commissioning authority in this design build scenario would be considered a "disinterested employee or subcontractor of the contractor" and therefore not an acceptable commissioning authority for the project."

Valentin: I don’t think the actual regulations changed much between the V2.2 and V2009 in regards to contractual relationships; however, V2009 now requires the team to upload a copy of the Cx contract to LEED Online for review. In V2.2, this was not required. I venture to guess that many project teams earned EAc3 under V2.2 without actually having the proper contractual relationships (inadvertently or not). I think this LEED Interpretation is the result of teams getting this credit denied in V2009.

I agree with the trend that you are referring in your last post (above). In the DoD arena, this credit is essentially impossible to earn because the Gov’t will not hire the CxA directly. This makes it much more difficult for the contractor in a Design Build contract to develop an overall strategy to earn LEED certification. There are numerous other LEED items that the Gov’t will not agree to (post occupancy activities required under EAc5 M&V and EQc7.2 Thermal Comfort Verification). And there are numerous other LEED items that simply cannot be incorporated into the DoD program (SSc5.1 Protect & Restore Habitat and WEc1 Water Efficient Landscaping (no irrigation) because turf grass and irrigation is always RFP required as opposed to ground cover and no irrigation); making it progressively more difficult to earn LEED certification, which is counterintuitive since the Fed is trying to set the example by mandating LEED.

It appears that the LEED interpretation noted above is in contrast to 2 CIR rulings dated 12/22/05 and 10/9/06. The 12/22/05 CIR Ruling states: "The intent of the credit is met if the design builder has hired an independent third-party commissioning provider. To ensure that conflict of interest is minimized, there should be a clear, direct line of communication from the commissioning provider to the owner." The 10/9/06 CIR Ruling states: "Yes, a disinterested subcontractor [hired by the A-E subcontractor of a D-B firm] is acceptable as Commissioning Agent for EAc3. "Disinterested" means that this entity has no additional role in the project and is allowed unfettered communication with the project owner." I researched these CIR's back in 2010 prior to the LEED Interpretation program and still have the full text for the 10/9/06 ruling. I would think that reference to these two CIR's would help offset the LEED Interpretation noted above. The key here is the direct line of communication with the Owner and the contract with the CxA can be written with that type of language.

Interesting.

LI#5023 (10/09/2006) does allow the CxA to be a subconsultant to the AE as a subconsultant to the builder, however, when you look it up, it only applies to v2.2. It specifically excludes v2009 and says it was not evaluated for v2.0 or v2.1 (or some other products). You are right, the difference was the direct communication to the owner.

LI#1332 (12/22/2005) also allows the CxA to be in this kind of arrangement. This one shows it applicable to only v2.0, v2.1 and v2.2 and excludes v2009.

LI#10244 (10/01/2012) clearly precludes this contractual relationship and really fixes on the “Who Can Be The Commissioning Authority” table that we all use to determine if acceptable. This table first came out on 01/03/2006 and then was included in the v2009 reference guide.

Personally, I do not think referencing two preceding LEED Interpretations will sway GBCI to approve the credit. Neither are marked for v2009. Perhaps they would accept if you have a v2.2 project still under construction (we still have a fair number going ourselves).