Certification Bodies: Who Are They And How Do I Do Business With Them?

For this week’s Guest Post Friday, Musings welcomes back Doug Reiser (@douglasreiser) for the fourth time.  Doug is a construction attorney, LEED AP and the principal at Reiser Legal PLLC in Seattle, WA. His office provides construction counsel for businesses in the construction industry. He also runs the Builders Counsel, a blog focused on progressive issues in green building and construction law. 

Certification, they all want it.  What makes your building look better than your neighbor’s? That plaque, that logo or that sign denoting that a prominent organization said your project is worthy enough to carry their torch.

LEED, Passive Haus, Living Building Challenge, Greenroads – you’ve all heard of them.   They are examples of a growing group of third party organizations that are willing to tell you whether your project is exceptional.  These organizations aren’t contractors, they’re document reviewers. But, that review can be very valuable to a builder or government agency.

People like to think that you simply line up to the trough and get your certification. But, the reality is that certification is never guaranteed. Are you ready to be told no?  Do you even know how the process works? Do you know your remedies against these organizations? Probably not.

There is no reason to hang your head if you answered my above questions in the negative. The reality is that certification bodies are an unknown. Few attorneys, consultants and government agencies actually understand how they work. Here is a snippet of the process:

1. Registration – You pay money, and they give you entry to their world. Registration often comes with the benefit of telling the world that you are working towards certification. Thus, you may get to use the organization’s logo.
2. Exchange – The major step in the certification process is the exchange of documents, verifying the actions take on the project, the materials used, and the results of inspections and testing.
3. Review – Once it has what it needs, the organization will ask for your help in its review of your files. Responsiveness is highly recommended.
4. Certification – After the review is complete, you are handed certification or you are denied certification and given limited appeal rights.
5. Post-Certification – Assuming you got the golden goose, you might have to commit to turning over testing documentation for a period of time. Don’t worry though – none of the big guys have said they will take back your prize.

So, what happens when and if you have a problem with one of these organizations?  Most (if not all) of the more prominent organizations are non-profit and have few resources to throw at your dilemma. These organizations manage these potential problems up-front, through their agreement.

Certification bodies typically post their agreements online. If you read through the certification procedure above, you may have noticed a few things that be might have an effect on the way you do business with a certification body:

1. Working in the Cloud – First, a certification organization is not a contractor. Certification bodies never step foot on a project unless there is a glaring problem with your documents and they invoke a right to inspect. Many users believe that they can haul the organization into their home courts, under their home law. But, the activities performed by these organizations might not alone subject them to those jurisdictions. Where a forum and governing law clause is absent, the debate is up in the air.
2. Site Liability – The first time I heard a government agency ask an organization for liability insurance, I was puzzled. How can an invisible third party have an “on-site” liability exposure? While you may regard their logo or plaque as capable of causing mass hysteria turned into site meltdown, I think that users can skip the demand for liability insurance.
3. Certification Expectations – Many users seek certification to get tax breaks, financing incentives and other benefits.  But, a certification organization does not know why you “need” their certification.  For that reason, consequential losses and damages are typically waived – and they probably should be. If certification is dire to your project and the slightest hint of negligence or error might throw you off track, you might try to negotiate for additional protection.  But this group of non-profits are not always up for the challenge, so give yourself enough time to manage a potential certification denial or delay.
4. Navigating Disputes – Know ahead of time how to manage denial or disputes. Most good organizations have a pre-determined appeal process for denials, and a claims process for disputes. Remember that you have most likely agreed to some of these procedures in your agreement. Failing to follow the rules might leave you empty-handed without a remedy.
5. Using Your Plaque – Your plaque is pretty, but it comes with conditions. The USGBC’s Trademark Policy is as big as some legal texts (a bit of an exaggeration), so be advised that you are expected to read it and comply. Failing to appropriately use the intellectual property of a certification organization might be the easiest way to lose your certification. Know exactly what logos you can use, where you can hang them and how your written materials should look. Remember, these organizations are non-profits that rely heavily on their IP rights for survival. They will fight for them.

Certification bodies have become an important and virtually necessary part of building smart. Knowing how they work can help you navigate their procedures and plan for potential disputes.

As always, Doug and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.