One of the 2021 BCxA Annual Conference’s highest-ranked sessions, according to evaluations, was the discussion, Level of Confidence - An All-Important Provider Question, All-Important Owner’s Decision, now available for continuing education credits as a video on the BCxA website.

The speakers, Kent Barber, PE, CCP, Keithly Barber Associates, and construction defects attorney Bryan Scholnick, Managing Partner at Tyson & Mendes, discuss the legal liability and insurance issues related to the promise – or overpromise – of “ensuring” the outcome and performance of a building project.

The presentation includes on-the-ground observations on performance assurance, level of risk, commissioning cost, project cost, and long-term operations costs. They describe how to set and meet expectations for successful project outcome and risk management by detailing, most often in written documentation:

  • The CxP’s role in achieving “a common goal of performance”
  • The acceptable level of performance per detailed OPR
  • Mandate and methods for collaboration
  • Test procedures and limitations, including sampling plan with specified failure rates, sample escalation upon failure, and retesting costs
  • Cx Process Plan and specifications that are reviewed, negotiated, and agreed to by the entire project team, to support ownership and “cooperative commissioning”
  • Contract and insurance management
    • coordinated with project schedule management and potential impacts
    • clear and concise contract language regarding indemnification and insurance

Tied to this discussion is an article that appeared in the January 2021 ASHRAE Journal by Ross D. Montgomery, P.E., BEAP, HBDP, ASHRAE Fellow, “What Insurance Do Building Commissioning Providers Need?” The article describes building commissioning as “a professional service performed by professionals, based on their tasks and responsibilities … these professionals should carry the appropriate insurance that reflects this … If we are convinced that we [CxPs] are professionals, liabilities and risks come with that categorization, such as, but not limited to, personal injury, property damage, transportation, theft, losses, negligence, breach of duty, malpractice, errors, omissions, mistakes, wrongful acts, etc.”

“The Cx provider is obligated to point out possible/potential problems or concerns with the design team. If any of these items are missed or forgotten, it is the responsibility of the professional CxP to recognize that omission and facilitate its cure or correction. This type of scope review or oversight should be clearly outlined as a part of the Cx requirements in the Cx contract or specification.”

Speaking of insurance, as the buildings industry moves toward new technical and business frontiers, insurance companies are following suit. A recent McKinsey report describing how technology is changing the insurance industry, indicate that standard insurance practice will shift from its current state of “detect and repair” to “predict and prevent,” based on data analytics and transparency requirements, transforming the industry – and your insurance needs/obligations – in the process.