By Wayne Robertson

State, local and federal government entities are "LEEDing" the way with green building programs - not only for their own facilities, but also with various green building mandates that affect the private sector. Green building legislation, executive orders, resolutions and other initiatives now affect a majority of states across the U.S., and the number of localities, school jurisdictions and companies now requiring sustainability measures is rapidly increasing. In fact, at least 25,000 buildings are currently registered as LEED-seeking projects today, a number that will continue to grow.

However, guaranteeing LEED certification remains the unspoken elephant in the room. As Andrew Burr of real estate information company the CoStar Group wrote in mid-August, "Earning LEED certification can be a fickle process, subject to complex credit interpretations and appeals, heavy documentation, budgetary considerations and ultimately, a ruling from the U.S. Green Building Council's sister organization, the Green Building Certification Institute. For those reasons, LEED consultants - even ones that have worked on hundreds of projects - have made a point not to promise certification to their clients."

This lack of assurance leaves architects, contractors and developers with the ultimate responsibility of delivering a building that will become LEED-certified. If LEED certification was an optional activity, guaranteeing LEED certification would merely be considered a "nice to have."

But we have seen that the contrary is becoming true. Facing government and industry mandates requiring higher levels of sustainability, architects, contractors, and sustainability consultants are finding themselves between that proverbial rock and a hard place. In essence, they have been put in a position where they must guarantee their efforts. It is not easy, but also is not an impossible task.

Why, then, would a sustainability consultancy such as my firm want to jump into the fray and guarantee the success of a LEED project? Perhaps the bigger question is: can we really do so?

But before writing off a LEED guarantee as a wasted exercise, one must consider the overwhelming need for such an offer, given the growing pressures facing the industry. Despite the spate of attention, LEED certification is a young industry. A July report by the USGBC count just over 3,000 commercial LEED-certified projects. As many LEED consultants will concur, the process to LEED is, indeed, fickle and unpredictable.

For every project there are hundreds of different sustainability combinations that can be used in order to meet certification requirements. You must also factor in time. It can take years from the time of registration to certification, with many tasks going on simultaneously. Add to the mix the many participating parties: architects, engineers, contractors, etc. Given these challenges facing the prospect of ensuring LEED certification, it is not hard to envision the potential for failure to occur.

A guarantee can (and must) work, and we believe the model is fairly straightforward: To ensure a measure of control over the entire certification process, we require that we are the single source for the LEED process with a commitment that begins at the start of the project. We begin with the charrette, an intense collaborative session where where sustainability measures are mapped out. For our guarantee to be valid, our clients must allow us to oversee LEED administration, fundamental commissioning and energy modeling -- key areas in the certification process with a single source guiding and controlling quality.

If a project misses its LEED target level or fails to earn certification, the client is refunded its LEED administration fee. We think that by pulling in the reins through a streamlined system and source of accountability, we're better able to meet and overcome the potential challenges we face, including protracted timing issues, certification complexities and even the specific challenges posed by the very nature of the building itself.

What about the monetary risk in providing a guarantee? The downside of failing to achieve LEED certification in our model is the refunding of LEED Administration fees, which typically run 30-45% of the total project fee (if following the guarantee guidelines). This is a relatively small price to pay in comparison to the prospect of a potential lawsuit involving attorney fees and damages that could dwarf initial consulting fees.

Taking the threat of a lawsuit out of the equation helps keep consultants focused on the task at hand. And because clients go into the agreement with eyes open (with regard to the failure clause) this model has the extra benefit of keeping the client committed to the task (as "failure" is no longer an option that they can attempt to resolve through litigation). In short, the numbers weigh in favor of offering the guarantee.

To guarantee - or not - is a question we think will come up more and more as we see new requirements enacted.

Wayne Robertson is founder and president of Energy Ace, a sustainability consulting working with clients to design, create and operate sustainable environments.