I was trying to do some catching up, and the July Addenda has a very significant change to who can be the CxA. Basically, this negates a huge number or replies I have made to questions related to single contract situations.
Please look at LI #10244 as "reversed" on 07/01/2014. Here is the significant part:
"**Update 07/01/2014: Ruling has been reversed and revised to allow the CxA to be contracted to the general contractor or a subcontractor of the general contractor in limited circumstances.
In the design build scenario, a ˜disinterested independent third party firm may be hired by the design build contractor or a subcontractor to the design build contractor under the following constraints:
1. The commissioning firm may not be a subsidiary or partner of the general contractor or of any other firm that has been contracted to the general contractor to provide design and construction services for the project.
2. Though the commissioning firm is not contracted directly to the owner, the owner or an owner's representative must approve of the selection of the commissioning firm, and of the commissioning scope of work within the commissioning contract.
3. The CxA must directly report to the owner or owner's representative (or simultaneously report to the owner or owner's representative and other parties) throughout the commissioning process.
As noted above, the CxA must lead, manage and oversee all commissioning processes, including both fundamental and enhanced commissioning, consistent with the requirements for EA Credit 3: Enhanced Commissioning."
This is significant, and is listed as applying to any v2.2 or v2009 product for EAc3. I will be checking on v4, but cannot see them not making this applicable there as well.
Scott Bowman
LEED FellowIntegrated Design + Energy Advisors, LLC
LEEDuser Expert
519 thumbs up
July 28, 2014 - 9:15 am
Update to the Update. Just reviewed the v4 reference guide. While not quite as straight forward as this LI, it does appear to allow this kind of contractual relationship too...should have read that part just a little closer!
Here is what it says under qualifications of a CxA:
"If an owner requires a single contract through one entity (such as a government agency contracting through a general contractor), the CxA may be a qualified employee of the design or construction team for this prerequisite. If the project team is also attempting the enhanced commissioning credit, however, the CxA must be independent of the design or construction firm."
Then Table 1 is much simpler than under v2009 and while you could still interpret "subcontractor" to be an architect or engineer in this situation, the above "special circumstances" as it is called would seem to allow a third party CxA to be contracted to either the contractor or design team, as long as there is a direct reporting component to owner.
Jennifer Wehling
Director of SustainabilityHMC Architects
28 thumbs up
June 9, 2016 - 7:10 pm
Hi Scott,
I am familiar with LEED Interpretation ID #10244, and I understand (or at least I thought I understood) that the General Contractor CAN hold the contract for a disinterested, independent, 3rd party CxA in a Design/Build scenario.
My Design/Build project is a LEED NC v3/2009 project where the General Contractor holds all the contracts, including the contract for our disinterested, independent, 3rd party CxA. We are using the new v6 LEED online forms and the new EAc3 form asks you to check a box to confirm “The individual serving as the CxA is independent of the work of design and construction, is not an employee of the design firm, and is not an employee of, or contracted through, a contractor or construction manager holding construction contracts.” But because of the allowances in LI 10244, our CxA IS contracted through the contractor holding construction contracts.
Additionally you are asked to upload the CxA contract “between the owner and the CxA ensuring CxA involvement post construction.” We can provide a contract ensuring the CxA post construction involvement, but that contract isn’t with the owner. And there are other reasonable/allowable scenarios where the CxA contract wouldn’t be directly with the owner. Is this just an oversight in wording with the new form?
I can understand there may be some bugs to work out on the new forms, but this wording is leaving my team with a level of uncertainty that our contract arrangement is going to be accepted. Any insight?
Scott Bowman
LEED FellowIntegrated Design + Energy Advisors, LLC
LEEDuser Expert
519 thumbs up
June 10, 2016 - 11:20 am
First of all, I see no issue with your contractual relationship. The only thing I would suggest is make sure the CxA scope indicates a direct communication link between them and the owner, but that is a minor detail. Since under v2009, this is a LI, my guess is they will not spend the time to update the form, so just ignore what they say and do what they mean.
Funny, I said that to my daughters when they were growing up all the time..."Do what I mean, not what I say."