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not certifi ed by the council as LEED Silver, although that did not mean the building was not constructed to meet the appropriate standard of care. The contractor fi led a lawsuit against


the owner for unpaid fees of $54,000. This eventually led to a counterclaim against the contractor by the developer for $1.3m in damages. If the contract did not contain an express


requirement that the building was to be LEED Silver certifi ed but it was performing as intended, what kind of damages could the developer ask for? The developer claimed loss of tax credits under the state’s green building incentives, as the time limit to claim that credit expired before certifi cation could have been obtained. But the contract was also silent on any intended tax credit. In the end, this case was confi dentially


a disclaimer in the contract that explains that there are many factors outside the direct control of the contractor that may lead to a building not obtaining its certifi cation. For instance, the BREEAM rating of a building may depend on public transport links being established, which may not happen immediately.


Beware “silent” contracts A legal case has been brought in the US over a $7.5m condominium project in Maryland that failed to acquire a particular sustainable design standard. The building’s design features were intended to achieve US Green Building Council’s “LEED Silver” certifi cation, but the contract was silent as to a formal requirement that the building become LEED Silver certifi ed and silent as to which party was responsible for obtaining the certifi cation. In the end, the building was


settled and who was right and who was wrong was never determined by a court. It raises questions on both sides of the Atlantic as to whether standard forms of contract address sustainable building construction and what damages a client can recover if a building is built to the required standard of care but does not achieve the required “green” certifi cation. However, what we do know is that by clearly defi ning in the contract what sustainable measures the design professional and contractor is responsible for, this type of litigation could have been avoided.


Bob Paterson is a chartered civil engineer and loss adjuster and the UK director Triton adjusting, part of the Triton Global Group, which specialises in professional indemnity claims.


Is ‘smart’ technology


With the announcement that Bicester is to follow Ebbsfl eet as the next Garden City, it is hard to avoid thinking of what our future cities will be like. When the aim is to deal with a housing shortage, is the use of BIM a sensible focus? A key way to alleviate the housing crisis is to build more quickly, and modular construction is cited as a means to achieve this. There is a natural link between the use of BIM and the use of off-site manufacturing: for example, BIM software assists the preparation of a tight construction methodology prior to modular units arriving at site. However, two fl agship modular housing projects in the UK and US have been beset with problems. In October, Taylor Wimpey


started a £5m High Court case against Rogers Stirk Harbour and Partners over water seepage at its Oxley Woods development near Milton Keynes. In particular, the claim is related to the design by project architect Richard Rogers. In the US, the B2 tower at


Atlantic Yards in Brooklyn was to be a 32-fl oor, 31,500sq m modular building comprising 50% affordable units. When construction started in 2012, Arup said its “4D BIM capabilities supported innovative engineering that incorporates construction- process-driven design to bring


fi ned up to £90,000. They also risk reputational damage by being “named and shamed” by the EA. Although the scheme is mandatory,


organisations that are have ISO 50001:2011 Energy Management Systems certifi cation are deemed to meet its requirements, and don’t need to carry out an assessment, but do need to notify the EA of compliance. Certifi cation to ISO 50001 brings with


it a number of benefi ts, such as reinforcing good energy management, and a consequent reduction in costs.


ISO 50001 certifi cation requires


organisations to develop a management system that drives energy improvements, and is tailored to their business and operating methods. A management system will adapt more quickly to changes in the business, and as it is reviewed annually, may create additional savings each year. For more information about ESOS and ISO 50001 go to www.bmtrada.com.


Vic Bowen is chief operating offi cer at certifi cation body BM Trada


CONSTRUCTION MANAGER | JANUARY 2015 | 25


What it was supposed to look like: the B2 residential building by SHoP Architects for Atlantic Yards in Brooklyn, New York


the new hope for housing?


incredible value to this project in a diffi cult market”. In September, Skanska USA,


the contractor, fi led a $50m lawsuits that focused on claims of employer changes during the project; the developer (Forest City Ratner) alleged in reply that the losses resulted from a lack of skill on the part of Skanska. So modular construction and BIM are not panaceas for construction disputes. But there is hope.


As long as BIM shows any


benefi t, there is an inevitability about its increased use. The most advanced technology has become the norm in everyday life and so the thought of shunning advances feels counter-intuitive. With home projects, the


cost savings of BIM should be scalable. For large homeowners, the long-term asset management benefi ts of a BIM model should be appealing, but why shouldn’t all homes have the same benefi ts? And so we come back to


Bicester, because the fi nal question is whether BIM is part of an opportunity to create a “smart city”. If we think smart technology can be used to create effi ciency and raise well-being in a community, then the answer is clear — we need to make Bicester smart. By Assad Maqbool, a partner at Trowers & Hamlins specialising in projects and construction


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